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FULL PACKET_2011-03-21
MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA MARCH 7, 2011 CLOSED SESSION CALLED TO ORDER CITY HALL, 8TH FLOOR, ROOM 831 20 CIVIC CENTER PLAZA SANTA ANA, CA 5:17 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tem P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: None STAFF Present: DAVID N. REAM, City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS -None CLOSED SESSION ITEMS City Council Items 1A CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) Delmy Marquez v. City of Santa Ana - Orange County Superior Court Case No. 30 -2010- 00354865 Friends of the Lacy Historic Neighborhood (II) v. City of Santa Ana, et al. - Orange County Superior Court Case No. 30 -2010- 00388033 CITY COUNCIL MINUTES 1 MARCH 7, 2011 10A -1 1 B CONFERENCE WITH LEGAL COUNSEL -- ANTICIPATED LITIGATION pursuant to Government Code Section 54956.9(c) -One Case 1 C 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)('I ) Title: City Attorney 1 E PUBLIC EMPLOYEE PERFORMANCE EVALUATION pursuant to Government Code Section 54957 Title: Clerk of the Council Community Redevelopment Agency Items 2A CONFERENCE WITH REAL PROPERTY NEGOTIATOR pursuant to Government Code Section 54956.8. Property: +2.7 acres of Agency -owned land on the south side of Garden Grove Blvd immediately west of the Santa Ana River -'1600 Memory Lane, Santa Ana. Agency negotiator: Nancy Edwards, Interim Agency Executive Director Party with whom negotiating: VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership Under negotiation: Price and Terms of Payment of Sale of Property CLOSED SESSION REPORT —See Item '19A. for Report. CITY COUNCIL MINUTES 2 MARCH 7, 2011 10A -2 ADJOURNED THE CLOSED SESSION MEETING AT 6:07 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 3 MARCH 7, 2011 10A -3 REGULAR OPEN SESSION CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:09 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tem P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: None STAFF Present: DAVID N. REAM, City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS Mayor Pulido Roger Aragon, Police Chaplain SPECIAL PRESENTATION by Dr. Gurpreet Singh Ahuja, FAAP regarding the Orange County Human Relations Commission Annual Report EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to: 20 YEARS OF SERVICE 25 YEARS OF SERVICE Heather S. Folmar, Manager, Parks, Community Services Michael P. Alba, Department Benito J. Gonzales, Department Library Operations Recreation and Firefighter, Fire Fire Captain, Fire CITY COUNCIL MINUTES 4 MARCH 7, 2011 10A -4 CERTIFICATE OF RECOGNITION presented by MAYOR PULIDO to Abel Torres for his years of service with the Instituto De Los Mexicanos En EI Exterior (IME). CERTIFICATE OF RECOGNITION presented by MAYOR PULIDO to Betty Torres for her years of service with the Comite Civico Mexicano in Orange County. PROCLAMATION presented by COUNCILMEMBER MARTINEZ to Helen Torres honoring Latina History Day. PROCLAMATION presented by COUNCILMEMBER MARTINEZ to Ruth Kurisu recognizing Health Funders Partnership. CLOSED SESSION REPORT— Nothing to report. PUBLIC COMMENT • Jim Adams, representative of the Los Angeles /Orange County Building and Construction Trade Council, voiced opposition to findings and did not support study by "The Rubber Stamp Process: Broken Governance in Planning and Development and How Communities Can Regain a Voice" report recently presented to the City Council by Orange County Community Organized for Responsible Development. o Councilmember Sarmiento and Mayor Pro Tem Alvarez thanked representative for clarifying position, inconclusive findings, and expressed support of Central Labor Council (Teamsters). • Jennifer Gonzalez, introduced self as Area Manager for Southern California Gas Company. • Tom Jackson, support disestablishment of Community Management District "CMD " /PBID through their Petition and opined that such process should have been included in the Plan. • Ralph Allen, opposed to CMD /PBID; City should not have voted. • Lisa Ball, representing Air Quality Management District "AQMD" provided Annual Report. • Alfredo Amezcua, representing Santa Ana Coalition for Better Government, representing interest of Downtown businesses wishing to disestablish PBID; also requested that the City Council table Agenda Item 80A for further discussion. • Fina Chaves, expressed gratitude to Council for proclamation on Latina History Day; also continued to express opposition to PBID and called for the disestablishment. o Councilmember Tinajero directed staff to continue to dialogue with businesses in the Downtown area. • Claudia Arellanes, requested that the City Council disestablish PBID. • Nina Jun, opposed to PBID; parking lot business does not benefit from assessment. • Phillip Matchet (letter read by Herb Rose), opposed to PBID. • Herb Rose, has met with City Manager to discuss PBID; open to dialogue with the Council on the disestablishment. • Connie Hamilton, thanked Council for support of Comlink; concerned with condition of some streets that have cracked since recently being rehabilitated CITY COUNCIL MINUTES 5 MARCH 7, 2011 10A -5 • Vicky Baxter, thanked Council for success of monthly Art Walk event and to the Santa Ana Police Department for the mounted patrol. CONSENT CALENDAR MOT /ON: Approve Consent Calendar Items 10A through 25L with the following modifications: • Councilmember Tinajero abstained on item 13A; • Mayor Pro Tem Alvarez voted "No" on Item 19C; • Mayor Pro Tern Alvarez pulled Item 23A for separate action; and • Councilmember Mart inez pulled Item 25L for separate action; MOTION: Bustamante VOTE: AYES: NOES: : SECOND: Alvarez Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) None (0) A BST AIN None (O ABSENT: ) None (0) ADMINISTRATIVE MATTERS MINUTES 10A REGULAR MEETING MINUTES OF FEBRUARY 22, 2011 -Clerk of the Council Office MOT /ON= Approve Minutes. ORDINANCES /SECOND READING In the event a Councilmember recorded an "abstention" before consideration of the following ordinances) on first reading, such abstention will also be reflected in the minutes for second reading 11A ORDINANCE SECOND READING AND AMENDED RESOLUTION - 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 Placed on first reading at the February 22, 2011 City Council meeting and approved by a vote of 7 -0. CITY COUNCIL MINUTES 6 MARCH 7, 2011 1OA -6 Published in the Orange County Reporter on February 25, 201 1 . MOT /ON: 1. Place ordinance on second reading and adopt. 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) 2. Adopt amended resolution. RESOLUTION NO. 2011 -006 - 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 BOARDS /COMMISSIONS /COMMITTEES 13A NOMINATED BY CQUNCILMEMBER VINCENT SARM1EiVT0 AS .THE WARD 1 REPRESENTATIVE `FOR A FULL TERM EXPIRING DECEMBER 11, 2Q12 -Clerk of the Council Office MOT /ON: Appoint. Residing Name Board /Commission Ward Sal Tinajero, Jr. Youth Commission, Associate 6 "Councilmember Tinjaero abstained on item 13A FINAL TRACT MAP NOTIFICATIONS Pursuant to Section 34 -183 of the Santa Ana Municipal Code, the City Engineer has received this Final Map and is in the process of reviewing the map for final approval. The City Engineer shall approve or disapprove this map within 10 days of the City Council Meeting. 17A FINAL TRACT PARCEL MAP NO. 17071 — 3321 SOUTH FAIRVIEW STREET MOT /ON: Receive and file. CITY COUNCIL MINUTES 7 10A -7 MARCH 7, 20'1'1 MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT —None. 19B EXCUSED ABSENCES —None. 19C DESTRUCTION OF OBSOLETE .CITY RECORDS (City ManageYs OfFce) Clerk of the Council OfFce MOT /ON: Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2006 -045. "`Mayor Pro Tem Alvarez voted "No" on Item 19C. 19D QUARTERLY REPORT FOR HOUSING DIVISION PROJECTS AND ACTIVITIES - Community Development Agency Recommended action approved by the Community Redevelopment and Housing Commission on February 1 5, 201 1 , by a 5 -O vote. (Bist absent) MOT /ON: Receive and file. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A REIMBURSEMENT OF FUNDS UNDER THE FY 2010 HOMELAND SECURITY GRANT PROGRAM - Police Department MOT /ON: 1. Authorize the City Manager and the Chief of Police to enter into a sub - grantee agreement. AGMT NO. 2011 -044 -With the City of Anaheim for reimbursement of funds expended for the purchase of equipment, services, and training authorized under the FY 201 O Urban Areas Security Initiative (UASI) in an amount not to exceed $3,421 ,844. 2. Approve an appropriation adjustment. (Requires five affirmative votes) CITY COUNCIL MINUTES 8 MARCH 7, 2011 1OA -8 APPROPRIATION ADJUSTMENT NO. 2011 -153 - Recognizing the FY 201 O Urban Areas Security Initiative in the amount of $3,421 ,844 in revenue account and appropriate same in the FY 2010 Urban Areas Security Initiative Program Grant expenditure accounts. 20B AGREEMENTS WITH FIESTA DE CARNIVAL AND "O" ENTERTAINMENT FOR PROVIDING CARNIVALS AT CITY -OWNED PARKS MOT /ON: 1. Authorize the City Manager and Clerk of the Council to execute agreements, subject to non - substantive changes approved by the City Manager and City Attorney. • AGMT NO. 2011 -045 — Execute an amendment with Fiesta de Carnival in the amount of $46,500 for cone -year term • AGMT NO. 2011 -046 - Execute an amendment with "O" Entertainment in the amount of $15,250 for cone -year term 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2011 -152 - Recognizing projected carnival revenue in the amount of $61 ,750 in the Recreation Special Fees and Donations revenue account and appropriate funds to the Recreation Special Fees and Donations expenditure account. SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES MOT /ON: Award in accordance with Request for Council Action. (Items 22A through 22D) 22A SPEC. NO. 09 -007 — SWEEPER BROOM REWRAP — Renew the contract with West Coast Equipment, Inc. for a one -year period in an annual amount not to exceed $61 ,000 — Finance &Management Services 22B SPEC. NO. 11 -002 — DUODOTE AUTO - INJECTORS — Award a contract to Meridian Medical Technologies, Inc. in an amount not to exceed $44,000 —Fire Department and Finance &Management Services 22C SPEC. NO. 11 -005 — SANITARY SEWER TRASH GRINDER —Award a contract to JWC Environmental in an amount not to exceed $58,000 — Public Works Agency and Finance &Management Services CITY COUNCIL MINUTES 9 MARCH 7, 2011 1OA -9 22D SPEC. NO. 08 -077 — HEATING, VENTILATION, AND AIR CONDITIONING MAINTENANCE AND REPAIRS — Renew the contract with Adelphia, Inc. d /b /a Chandler's Air Conditioning and Refrigeration for a one -year period in an annual amount not to exceed $60,000 — Finance & Management Services PROJECTS /CHANGE ORDERS 23A :CONTRACT. AWARD FOR LACY NElGFIBORHOQD SEWER AND WATER MALN IMPROVEMENTS (PROJECT N0.117505) - Public Works Agency and Community Development Agency MOT /ON: 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. MOTION: Alvarez SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 23B CONTRACT AWARD WITH CALIFORNIA PROFESSIONAL ENGINEERING, INC. FOR TRAFFIC SIGNAL SYSTEM UPGRADES - PHASES 1, 2, 3, AND 4 (PROJECT NOS. 106708, 106709, 106710, AND 10671 1) - Public Works Agency MOT /ON: 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. CITY COUNCIL MINUTES 10 MARCH 7, 2011 10A -10 2. Approve a Funding Analysis with a total estimated construction cost of $306,400. AGREEMENTS MOT /ON: Authorize the City Manager and Clerk of the Council to execute the following agreements, subject to non - substantive changes approved by the City Manager and City Attorney and /or actions as noted on the Request for Council Action report. (Item 25A through 25K) 25A AGMT NO. 2011 -047 - FIELD OPERATIONS GUIDES - Execute an amendment with GTSI Corp. to allow for expenditure of remaining FY2009 Interoperable Emergency Communications Grant Program funds - Police Department 25B AGMT NO. 2011 -048 - TACTICAL SCIENCE COURSE -With Aardvark Tactical Foundation in an amount not to exceed $164,000 - Police Department 25C AGMT NO. 2011 -049 - ENVIRONMENTAL SERVICES FOR ATHLETIC FIELD IMPROVEMENTS AT WILLARD INTERMEDIATE SCHOOL -With The Planning Center in an amount not to exceed $33,628 - Planning and Building Agency and Parks, Recreation &Community Services Agency 25D MAINTENANCE OF COMMUNICATIONS INTERCEPT ROOM SERVERS - Authorize payment to JSI Telecom for an annual maintenance plan in the amount not to exceed $16,605 - Police Department 25E AGMT NO. 2011 -050 - SECURITY SERVICES AT THE SANTA ANA LIBRARY — Execute an amendment with North American Security Inc. for an additional $18,968 for a total agreement amount not to exceed $43,968 - Parks, Recreation &Community Services Agency 25F AGMT NO. 2011 -051 — LOAN AGREEMENT FOR 605 -611 EAST WASHINGTON STREET— With Santa Ana WBBB, LP in an amount not to exceed $2,500,000 - Community Development Agency Recommended action approved by the Community Redevelopment and Housing Commission on February 15, 201 1 , by a 5 -O vote. (Bist absent) CITY COUNCIL MINUTES 11 MARCH 7, 2011 10A -11 25G AGMT NO. 2011 -052 - LANDSCAPING SERVICES - Execute an amendment 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 - Public Works Agency 25H SETTLEMENT AGREEMENTS FOR BRISTOL STREET CORRIDOR (PROJECT NO. 081700) — Public Works Agency AGMT NO. 2011 -053 - With Alianza Legal Hispana for acquisition settlement for the business located at 828 N. Bristol Street, Suite 105 in the amount of $26,390. AGMT NO. 2011 -054 -With JLT Enterprises for acquisition settlement for the business located at 828 N. Bristol Street, Suite 100 in the amount of $21 ,995. 251 RIGHT -OF -WAY ACQUISITION, RELOCATION AND PROPERTY MANAGEMENT SERVICES FOR CAPITAL IMPROVEMENT PROJECTS (CIP) — Execute the following agreements in an aggregate amount not to exceed $500,000 - Public Works Agency • AGMT NO. 2011 -055 -With Overland Pacific Cutler • AGMT NO. 2011 -056 -With Paragon Partners 25J AGMT NO. 2011 -057 - TESTING AND INSPECTION SERVICES OF VARIOUS CAPITAL IMPROVEMENT PROJECTS -With AESCO, Inc. in an amount not to exceed $478,000 - Public Works Agency 25K AGMT NO. 2011 -058 - PROJECT DEVELOPMENT AND PRELIMINARY ENGINEERING ACTIVITIES FOR THE SANTA ANA - GARDEN GROVE FIXED GUIDEWAY PROJECT (PROJECT 092505) - Execute a cooperative agreement with the Orange County Transportation Authority (OCTA), in an amount not to exceed $5,541 ,700 - Public Works Agency 25L AGMT NO. 2011 -059 — CITYWIDE FINANCIAL AND OPERATIONAL REVIEW —City Manager's Office MOT /ON: Authorize the City Manager and Clerlc of the Council to execute an agreement with Management Partners in an amount not to exceed $98,900, subject to non - substantive changes approved by the City Manager and City Attorney CITY COUNCIL MINUTES 12 MARCH 7, 2011 10A -12 MOTION: Martinez SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) ��END OF CONSENT CALENDAR" BUSINESS CALENDAR RESOLUTIONS 55A EXTENSION OF CONDITIONAL USE PERMIT NO. 2008 -37 TO ALLOW THE EXPANSION OF THE ALLIANCE CHURCH OF ORANGE - 2130 NORTH GRAND AVENUE - Planning and Building Agency MOT /ON: Adopt a resolution. RESOLUTION NO. 2011 -007 - 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 MOTION: Benavides SECOND: Alvarez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 55B ACCEPTING OFFICE OF EMERGENCY SERVICES 2007 ANTI -GANG INITIATIVE PROGRAM GRANT AWARD FUNDS - Police Department MOT /ON: CITY COUNCIL MINUTES 13 MARCH 7, 2011 10A -13 55C 1. Adopt a resolution. RESOLUTION NO. 2011 -008 - 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 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2011 -154 - Recognizing State of California Office of Emergency Services 2007 Anti -Gang Initiative Supplemental Grant funds of $24,000 revenue account and appropriate the same to expenditure account. MOTION: Alvarez SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) SUBMISSION OF GRANT APPLICATIONS FOR MEASURE M COMPREHENSIVE TRANSPORTATION FUNDING PROGRAM - Public Works Agency MOT /ON: Adopt a resolution. RESOLUTION NO. 2011 -009 - 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 CITY COUNCIL MINUTES 14 MARCH 7, 201'1 1OA -14 MOTION: Alvarez SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 55D AUTHORIZATION TO SUBMIT BICYCLE TRANSPORTATION ACCOUNT PROJECT APPLICATIONS - Public Works Agency MOT /ON: Adopt a resolution. RESOLUTION NO. 2011 -010 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE SUBMISSION OF PROJECTS FOR FUNDING UNDER THE BICYCLE TRANSPORTATION ACCOUNT MOTION: Benavides SECOND: Alvarez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) PUBLIC HEARINGS 75A PUBLIC HEARING - ISSUANCE OF TAX EXEMPT BONDS FOR MULTI- FAMILY HOUSING PROJECTS FOR 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 - Community Development Agency Recommended action approved by the Community Redevelopment and Housing Commission on February 15, 2011 by a 5 -O vote (Bist absent). Legal Notice published in the O.C. Reporter on February 20, 2011 and February 21 , 201 1 . CITY COUNCIL MINUTES 15 MARCH 7, 2011 10A -15 There was no staff presentation on this matter. The Mayor opened the Hearing at 7 :25 p.m. There were no speakers or written communication and the Hearing closed. MOT /ON: 1. Adopt a resolution. RESOLUTION NO. 2011 -011 - 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 MOTION: Alvarez SECOND: Martinez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) THE CITY COUNCIL RECESSED AT 8:25 P.M. FOR A JOINT SESSION OF THE CITY COUNCIL AND THE COMMUNITY REDEVELOPMENT AGENCY 80A APPROPRIATION ADJUSTMENT, RESOLUTION, AMENDMENT TO AGREEMENT WITH AECOM, AND COOPERATIVE AGREEMENT FOR THE DOWNTOWN PARKING GARAGES AND WAYFINDING SIGNAGE PROGRAM — Community Redevelopment Agency MOT /ON: 1. Adopt a resolution. RESOLUTION NO. 2011 -012 - 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 CITY COUNCIL MINUTES 16 MARCH 7, 2011 10A -16 2. Authorize the City Manager and Clerk of the Council to execute a Cooperative Agreement, subject to non - substantive changes approved by the City Manager and City Attorney. AGMT NO. 2011 -060 -With the Community Redevelopment Agency of the City of Santa Ana (Agency) in the amount of $9,455,000 3. Authorize the City Manager and Clerk of the Council to execute an agreement subject to non - substantive changes approved by the City Manager and City Attorney. AGMT NO. 2011 -061 - Execute an amendment with AECOM, 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. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2011 -155 - Recognizing the 2011 Series A Tax Allocation Bond proceeds in the amount of $6,100,000 into the revenue and appropriating the same into the 2011 Series A Capital Project expenditure. MOTION: Alvarez SECOND: Martinez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 80B RESOLUTION AND COOPERATIVE AGREEMENT FOR THE IMPLEMENTATION OF PROGRAMS AND PROJECTS ESTABLISHED IN THE 2010/11 - 2014/15 FIVE -YEAR IMPLEMENTATION PLAN - Community Redevelopment Agency MOT /ON: 1. Adopt a resolution. CITY COUNCIL MINUTES 17 MARCH 7, 2011 10A -17 RESOLUTION NO. 2011 -013 - 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 2. Authorize the City Manager and Clerk of the Council to execute a Cooperative Agreement, subject to non - substantive changes approved by the City Manager and City Attorney. AGMT NO. 2011 -062 -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 MOTION: Bustamante SECOND: Alvarez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) JOINT SESSION ADJOURNED AT 8:26 P.M., MEMBERS CONVENED TO THE COMMUNITY REDEVELOPMENT AGENCY, FOLLOWED BY THE HOUSING AUTHORITY MEETING; THE CITY COUNCIL MEETING RECONVENED AT 8:28 P.M. WITH SAME MEMBERS PRESENT. COMMENTS 90A CITY MANAGER'S COMMENTS —None 90B CITY COUNCILMEMBER COMMENTS CITY COUNCIL MINUTES 18 MARCH 7, 2011 10A -18 Councilmember Sarmiento: City Council recently held press conference regarding City support of Enterprise Zones "EZ ", Senator Lou Correa will make this a priority, urged residents to voice support to local elected officials. Councilmember Martinez: • Noted recent article regarding "Nets for Life ", thanked reporter for highlighting efforts; • Sacramento budget issues have affects on municipalities, families, etc.; City to continue working on keeping businesses in the community; thanked Mayor and Council for efforts; • Commented on issues recently approved by the City Council including Affordable Housing at the previous meeting and a grant application for additional bike lanes which is a great alternative transportation mode. Councilmember Bustamante: • Attended Art Walk over the weekend; impressed with attendance; invited all to attend upcoming events. Councilmember Tinajero: • Little leagues held opening day ceremonies throughout the City; thanked Parks Department for park maintenance efforts; and • Announced that the junior high schools would be hosting Academic Decathlon competitions. Councilmember Benavides: • Echoed comments by other members of the Council regarding parks, Downtown vitality, and other efforts that make our City great; • Attended Comlink meeting held last month; • Asked staff to look into disrepair of street rehab program; and • Requested that staff look into ways to avoid the problem that caused the death of a person living in a converted garage in the City of Costa Mesa. Mayor Pro Tem Alvarez: • Urged residents to call City Hall if they find that the condition of their repaired street is substandard; • Attended Little League Opening Ceremony at Santiago Park; thanked parents for involving their children in sports and volunteers for efforts; and • Wished Joey Madrid, a Youth Commissioner, a Happy 16t� birthday_ Mayor Pulido: • Battle over proposed State takeaway of Redevelopment Agencies and Enterprise Zones continues; City signed letter of opposition along with other big cities; protected by recently approved Proposition 22 - CITY COUNCIL MINUTES 19 MARCH 7, 2011 10A -19 thousands of jobs have been generated by the Enterprise Zone and projects such as schools, Mall, Auto Mall, and other major projects funded with Redevelopment monies. ADJOURNED - 7:55 P.M. -The next meeting of the City Council is scheduled for Monday, March 21 , 201 1 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting in the Police Community Room, 60 Civic Center Plaza, Santa Ana, California. Maria Huizar Clerk of the Council CITY COUNCIL MINUTES 20 MARCH 7, 2011 10A -20 MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA MARCH 10, 2011 CALLED TO ORDER CITY HALL, 8T" FLOOR, ROOM 831 20 CIVIC CENTER PLAZA SANTA ANA, CA 5:12 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: None STAFF Present: DAVID N. REAM, City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS - None CLOSED SESSION ITEMS The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matter will prejudice the position of the City. 1 PUBLIC EMPLOYMENT pursuant to Government Code Section 54957(b)(1) - City Manager CLOSED SESSION REPORT - Interim City Attorney Straka reported the following: MOTION: 1. Accept the retirement of David N. Ream, City Manager effective March 10, 2011; MINUTES OF SPECIAL MEETING 1 OB -1 MARCH 10, 2011 2. Authorize the Mayor to execute a contract with David N. Ream for Interim City Manager Services effective March 11, 2011 through May 31, 2011 in an amount not to exceed $25,000; and 3. Council subcommittee comprised of Mayor Pulido and Mayor Pro- Tern Alvarez to negotiate the terms of the contract. MOTION: Pulido VOTE: AYES: ADJOURNED — 5:50 P.M. SECOND: Alvarez Alvarez, Benavides, Bustamante, Martinez, Sarmiento, Tinajero, Pulido (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) MINUTES OF SPECIAL MEETING 1 OB -2 MARCH 10, 2011 (ROH - 02/07/11) ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 41 OF THE SANTA ANA MUNICIPAL CODE ADDING A PROCEDURE FOR PEOPLE WITH DISABILITIES TO REQUEST REASONABLE ACCOMMODATIONS TO ENSURE EQUAL ACCESS TO HOUSING THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Individuals with disabilities should be provided equal opportunity to the use and enjoyment of a dwelling. To that end, the City's rules and policies should provide for reasonable accommodations so as not to unfairly hinder such access and enjoyment. B. The state Fair Employment and Housing Act and the federal Fair Housing Act make it unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services, when such accommodations may be necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling. This has been interpreted by the courts to apply to local government agencies. C. A procedure to grant reasonable accommodations to the City's rules, policies and practices shall be established. D. It is the policy of the City, pursuant to the Federal Fair Housing Amendments Act of 1988 and the California Fair Employment and Housing Act, to provide individuals with disabilities reasonable accommodation in rules, policies, practices and procedures to ensure equal access to housing and facilitate the development of housing for individuals with disabilities. This ordinance establishes a procedure for making requests for reasonable accommodation in land use, zoning, and building regulations, policies, practices, and procedures of the City to comply fully with the intent and purpose of the Acts. E. The Request for Council Action for this ordinance dated February 7, 2011, shall by this reference be incorporated herein, and together with this ordinance, any amendments or supplements and the oral 11 A -1 testimony before the City Council at this meeting, shall additionally constitute the necessary findings for this ordinance. F. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of Section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Section 41-49 is added to Chapter 41 of the Santa Ana Municipal Code to read in full as follows: Sec. 41-49. Disabled Person. For purposes of the reasonable accommodation process detailed in Sections 41 -652, et seq., any person who has a medical condition, physical disability, or mental impairment that substantially limits one or more major life activities; anyone who is regarded as having such impairment; or, anyone who has a record of such impairment. People who are currently using illegal substances are not covered unless they have a separate disability. Section 3. Section 41 -141 is added to Chapter 41 of the Santa Ana Municipal Code to read in full as follows: Sec. 41 -141. Reasonable Accommodation. A modification or exception to the standards, regulations, policies, and procedures contained in this title for the siting, development, and use of housing or housing - related facilities, that would eliminate regulatory barriers and provide an individual with a disability equal opportunity for the use and enjoyment of housing of their choice, and that does not impose undue financial or administrative burdens on the City or require a fundamental or substantial alteration of the City's planning and zoning programs. Section 4. Section 41 -652 is added to Chapter 41 of the Santa Ana Municipal Code to read in full as follows: Sec. 41 -652. Reasonable Accommodation — Application Process. (a) Notice to the public of availability of accommodation process. The Agency shall prominently display in both City Hall and the Planning and Building Agency a notice advising those with disabilities or their representatives that they may request a reasonable accommodation in accordance with the procedures established in this Division. Ordinance No. NS -XXX 11 A -2 Page 2 of 7 (b) Applicability. To make specific housing available to an individual with a disability, any person may request reasonable accommodation under this division to modify a land use or zoning standard, regulation, policy, and procedure of the City as may be necessary to afford the individual with a disability equal opportunity to the use and enjoyment of their dwelling. A request for reasonable accommodation shall be made by filing an application under this section. (c) Application. An application for reasonable accommodation shall be submitted on a form prescribed by the Executive Director of the Planning and Building Agency, or in the form of a letter addressed to the Executive Director. (d) Privacy. Any information related to a disability status and identified by an applicant as confidential shall be retained in a manner so as to respect the privacy rights of the applicant and shall not be made available for public inspection. (e) Assistance. If an individual needs assistance in making the request for reasonable accommodation, the city will provide assistance to ensure that the process is accessible. (f) Timing. A request for reasonable accommodation may be filed at any time that the accommodation may be necessary to ensure equal access to housing. A reasonable accommodation does not affect an individual's obligations to comply with other applicable regulations not at issue in the requested accommodation. (g) Filing Fees. There shall be no fee imposed in connection with a request for reasonable accommodation under the provisions of this Division. Section 5. Section 41 -653 is added to Chapter 41 of the Santa Ana Municipal Code to read in full as follows: Sec. 41 -653. Reasonable Accommodation — Review. (a) Executive Director Review. An application for reasonable accommodation shall be reviewed by the Executive Director of the Planning and Building Agency, or his or her designee, as appropriate. (b) Decision. Within sixty (60) days of acceptance of the application as complete, the Executive Director shall issue a written decision to grant, grant with modifications, or deny an application for reasonable accommodation in accordance with Section 41 -654 and shall notify the applicant of the decision. The written decision shall explain in detail the basis of the decision, including the Executive Director's findings on the factors stated in Section 41 -654. If necessary to reach a determination on the request for reasonable accommodation, the Executive Director may request additional information from the applicant consistent with The Fair Housing Amendments Act of 1988 and the California Fair Employment and Housing Act, specifying in detail the information that is required. If a request for Ordinance No. NS -XXX 11 A -3 Page 3 of 7 additional information is made, the sixty (60) day period to issue a decision is stayed until the applicant responds to the request. (c) Referral to Other Reviewing Authority. The Executive Director shall have the authority, upon his or her sole discretion, to refer any reasonable accommodation application to any other reviewing authority, including, but not limited to, the Planning Commission, the Zoning Administrator, or the Historic Resources Commission, to review the reasonable accommodation application and make a determination on the same in accordance with the applicable Sections. Section 6. Section 41 -654 is added to Chapter 41 of the Santa Ana Municipal Code to read in full as follows: Sec. 41 -654. Reasonable Accommodation — Standards. (a) Findings. The decision to grant, grant with modifications, or deny an application for reasonable accommodation shall be based on a finding of consistency with the Acts and shall take into consideration all of the following factors: 1. Whether the housing or housing related facilities, which are the subject of the request, will be used by an individual with a disability under the Acts. 2. Whether the request for reasonable accommodation is necessary to make specific housing available to an individual with a disability under the Acts. 3. Whether the requested reasonable accommodation would impose an undue financial or administrative burden on the city. 4. Whether the requested reasonable accommodation would require a fundamental alteration in the nature of a city program or law, including but not limited to land use and zoning. 5. Whether the requested reasonable accommodation would be contrary to the public health, safety, or welfare, or be injurious to the property or improvements of adjacent properties. 6. Whether the requested reasonable accommodation adequately considers the physical attributes of the property and structures. 7. Whether alternative reasonable accommodations could provide an equivalent level of benefit. Ordinance No. NS -XXX 11 A -4 Page 4 of 7 8. Whether the property is in compliance with the then existing laws and regulations otherwise applicable to the property that is the subject of the request. If any non - compliance is through no fault of the applicant or unrelated to the request for reasonable accommodation, the Executive Director may waive this requirement. However, such a waiver shall not preclude the City from requiring that the existing violations be corrected in accordance with the Santa Ana Municipal Code. (b) Conditions of Approval. In granting a request for reasonable accommodation, the Executive Director of the Planning and Building Agency may impose any conditions of approval deemed reasonable and necessary to ensure that the reasonable accommodation will comply with the findings required by this section. Conditions may be imposed to ensure that any removable structures or physical design features that are constructed or installed in association with the reasonable accommodation be removed once those structures or physical design features are unnecessary to afford the individual with a disability for whom the reasonable accommodation was granted the use and enjoyment of the dwelling. (c) Restrictive Covenant. When applicable, the City shall enter into a restrictive covenant with the owner of the property which provides that prior to any sale, transfer, lease or other conveyance of the property, or at the time the need for the reasonable accommodation is no longer necessary, that the owner of the property shall bring the property into conformance with the City's zoning code to the extent that relief was provided under the zoning code as part of the request for reasonable accommodation. The restrictive covenant shall be recorded against the property being granted the reasonable accommodation. The restrictive covenant shall provide that the reasonable accommodation does not run with the land and shall terminate upon any sale, transfer, lease or other conveyance of the property. Upon submittal of a new application for a successor in interest to the property, the Executive Director may consider a continuation of the reasonable accommodation if it is consistent with and does not extend the original approval. Section 7. Section 41 -655 is added to Chapter 41 of the Santa Ana Municipal Code to read in full as follows: Sec. 41 -655. Reasonable Accommodation — Miscellaneous Provisions. (a) Time Extension; Voidance; Revocation. Any reasonable accommodation approved in accordance with the terms of this Article may be extended, voided, or revoked for the same reasons and in the same manner as a conditional use permit, as detailed in Article V of this Chapter, or for any violations of this Article, or for any violations of the terms and conditions of the reasonable accommodation, or if any law is violated in connection with the use of the reasonable accommodation. Ordinance No. NS -XXX 11 A -5 Page 5 of 7 (b) Resubmittal of Applications. No request for reasonable accommodation that has been denied in whole or in part shall be filed again within six (6) months from the date of such denial except upon proof of changed conditions or by permission of the Executive Director of the Planning and Building Agency. (c) Modifications. A request to modify an approved reasonable accommodation shall be treated as a new application, unless in the opinion of the Executive Director the requested modification results in only a minor change, is within the authority of the Executive Director to approve, and is consistent with the original approval. (d) Appeals. The applicant requesting the accommodation may appeal an adverse determination or any conditions or limitations imposed in the written determination as provided in Chapter 3 of this Code. Section 16. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of 2011 APPROVED AS TO FORM: Joseph Straka, City Attorney By: Ryan O. Hodge Assistant City Attorney Miguel A. Pulido Mayor Ordinance No. NS -XXX 11 A -6 Page 6 of 7 AYES: NOES: ABSTAIN: NOT PRESENT Councilmembers Councilmembers Councilmembers Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ' and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS -XXX 11 A -7 Page 7 of 7 'i 12822 Garden Grove Blvd. Ste. D, Garden Grove, California 92843 -2010 (714) 638 -5550 Fax (714) 638 -6042 www.aaoc.com February 25, 2011 Mr. David Ream City Manager 20 Civic Center Plaza, 8t' Flom P.O. Box 1988, M31 Santa Ana, CA 92701 Dear Dave, I recently spoke with Jay Trevino from the Santa Ana Planning and Building Agency about the proposed ordinance which establishes a process to ensure equal opportunity to use and enjoy a dwelling for persons with disabilities. He explained why he felt this amendment to the Municipal Code was necessary and provided much insight into the ordinance. After speaking with Mr. Trevino and reviewing the ordinance further, the Apartment Association of Orange (AAOC) no longer has concerns with Ordinance No. NS -2813. Thank you very much for your consideration in delaying a vote on this issue for 30 days. Please also extend our thanks to Jay. We appreciate the City of Santa Ana's continued willingness to work with the AAOC on issues affecting our industry. Sinccrcly, Ray Maggi Cc: Mr. Jay Trevino A non-profit organization serving the rental housing industry since 1961 11A -10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: DESTRUCTION OF OBSOLETE CITY RECORDS i 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 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: Joseph Straka, Interim City Attorney City Attorney's Office From: Kathie S. Gonzalez, Executive Director Personnel Services Department, M24 Date: February 28, 2011 Re: REQUEST FOR DESTRUCTION OF RECORDS The Personnel Services Department requests your consent to destroy city records on the attached list, in accordance with the retention schedule outlined in City Council Resolution 2006 -045. Thank you. j1 19C -3 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE PERSONNEL SERVICES DEPARTMENT 2006 PERSONNEL SERVICES DEPARTMENT RECORD RECORD RECORD RECORD CATEGORY SERIES DESCRIPTION DATES ENROLLMENT Dental Insurance Employee dental insurance enrollment EE Separated March FORMS forms ** 2006 and prior (OFFICIAL) Flexible Enrollment forms for flexible spending EE Separated March Spending, program ** 2006 and prior Section 125 Life Insurance Employee life insurance enrollment forms ** EE Separated March 2006 and prior Long -Term Employee Long -Term Disability Insurance EE Separated March Disability enrollment forms ** 2006 and prior Insurance Medical Employee medical insurance enrollment EE Separated March Insurance forms ** 2006 and prior EQUAL Employment and Personnel and employment records, EE Separated March EMPLOYMENT personnel including application forms *, records 2006 and prior OPPORTUNITY records pertaining to promotions * *, layoffs * *, COMMISSION terminations * *, salaries ** and training* (EEOC) Involuntary Personnel records of terminated employee ** EE Separated March termination 2006 and prior OFFICIAL Certification/ Request for Certification and /or EE Separated March PERSONNEL Reassignment reassignment forms which document and 2006 and prior FILES Forms authorize hiring, reassignment, or other employee actions. ** Certificates of Certificates issued to EE which show EE Separated March Training completion date of training class(es).* 2006 and prior Commendation Letters of commendation and /or other EE Separated March Letters congratulatory documents received by and /or 2006 and prior issued to EE.* Disciplinary Memorandums, letters, or other records of EE Separated March Actions proposed and /or implemented disciplinary 2006 and prior action(s). ** Doctor's Notes/ Notes /medical release forms, etc., submitted EE Separated March Medical regarding employee's medical condition. ** 2006 and prior Releases Drug Screen Pre - placement and drug screening EE Separated March Test authorization and acknowledgement form(s) 2006 and prior and results of drug screening." 19C -4 PERSONNEL SERVICES DEPARTMENT RECORD RECORD RECORD RECORD CATEGORY SERIES DESCRIPTION DATES OFFICIAL Family and Basic employee data (name, address, class EE Separated March PERSONNEL Medical Leave title, pay rate, hours worked per pay period; 2006 and prior FILES (FML) additions to or deductions from wages). Dates (or hours) FML designated/ taken; FML notices given to employer by employee; documents from employer describing FML policies; records of premium payments of employee benefits; records of any disputed confidential files: records /documents relating to medical certifications. ** Job Application Applications for employment and resumes (if EE Separated March any) for hired employees.* 2006 and prior Medical Leave of Leave of Absence forms used in the EE Separated March Absences ** documentation of medical leave (including 2006 and prior pregnancy leave and Family and Medical Leave). ** Miscellaneous Documents not specifically mentioned but EE Separated March Documents kept in official personnel file. * ** 2006 and prior Notice of Form completed by employee and /or EE Separated March Separation department indicating effective date of 2006 and prior separation, last day on the job, reason for separation, etc. ** Oath of Office Form completed and signed by employee EE Separated March affirming allegiance to the Constitution of the 2006 and prior United States and the Constitution of the State of California.* Outside Form submitted by employee for approval for EE Separated March Employment employee to be engaged in outside 2006 and prior employment.* Performance Employee performance evaluation forms EE Separated March Evaluations completed by supervisory personnel re 2006 and prior employees' accomplishment of their assigned duties and responsibilities, etc.* PERS Forms to enroll employees in the Public EE Separated March Enrollment Employees' Retirement System (PERS) ** 2006 and prior Pre - Employment Forms completed by employee and medical EE Separated March Medical clinic to assess physical capability of 2006 and prior employee prior to hiring. ** Security Check Form completed by Personnel Svcs to EE Separated March Form request Police Dept to conduct security 2006 and prior check on employee prior to hiring.* Special Licenses Special licenses issued to employees from EE Separated March DMV, accredited schools, etc., verifying 2006 and prior employee meets certain job - related requirements.* Tuition Copies of applications for training and EE Separated March Reimbursement educational assistance which show EE 2006 and prior Request request, department head approval, and final disposition of request.* 19C -5 PERSONNEL SERVICES DEPARTMENT RECORD RECORD RECORD RECORD CATEGORY SERIES DESCRIPTION DATES OFFICIAL Union Bank Form signed by employee authorizing leave EE Separated March PERSONNEL Donation Form hours be donated to the Union Business 2006 and prior FILES Leave Bank to be used by union leaders for Union Business.* W -4 form Employee's Withholding Allowance EE Separated March Certificate completed by EE authorizing 2006 and prior employer to withhold Federal income tax from employee's pay and /or for indicating exemption. ** Please see attached spreadsheet, dated February 28, 2011, listing personnel files to be purged /digitally imaged. * Will be purged ** Will be digitally imaged * ** If non - medical records, will be purged; if medical records, will be digitally imaged. PREPARED BY: � Al�__ 51-1(11 Susan Wathen for Date Kathie S. Gonzalez Executive Director of Personnel Services RECORDS DESTROYED: Number of Boxes 19C -6 CONSENT BY: ., Kathie S. Gonzalez Date Executive Director of Personnel Services APPROVED Y: C Jo eph Straka Date Interim City Attorney 19C -7 A e 10 o Ic 0 �c10 0 0 o10 0 0 . cIc 0 0 1�0 0 �oIo10 0 0 0 Ic 0 1�0�o1�0 0 0 0 10 0 Ic 0 10IC.oIc 0 0 0 0 1010�o10.o 0 0 0 0 0 0 o10 0 0 1o.o10 0 0 0 .0�o10 0 0 0 O-• O� O� M M 00 'cY O O -- — M O -• N N .--i -- - O L M N M N N M M M M M N M N N M fry M N M M M M N N N N M N N M M cr) N N N M G O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O d a a 0. a 0. a s 0 m > c 0 r > c ri a��i .cr rc.� It c U cG a 0 d °' E o n O E E o E ro d o ro o❑ � op o ?; o� ao y , °_ v = o o ? o`n 0 o ro o ro. n m c Q 0 a 0 ro a un CZ s a VS w U P. 2. V) W a o. a a` Q .� n m L N o0 M O n 10 r- n t t rl v) V) 00 l- N --� �c �c [- O O\ `O 00 V) In O 10 N N N Q, .-. t M ao Q\ 7 v') a0 N--� V1 O Q, n N �--� O O M t Vl t o0 O O N �D N M D\ t ,b M 01 t o0 0o O 'I- M -- t" M N M c t N O O D\ N � n [� � DO a\ N t t 00 O O M t O1 M �-1 � . t t [I Oo . �-I .-. O n N Vl t oo �c rq N N t O (% 00 N - •� r- w 00 t �c l- W l 01 t 00 t W! '; V) W) O o0 C, M M r- 00 C, N Q\ t c� 10 M W) U r/] v) 00 M l� [� N N O d\ V) O N Ol O 00 O1 V1 r C� c1 00 o c N N O N o0 o0 N V) .-. N v% r M w/ �--� oo M �c cc O N Q� N V1 V) d' 10 -- t v) N O N O 10 �c �n 10 �c 10 N �c N �c v� r_ .o N t �D �o l_ O t v) v') V1 v) v) \0 kn V) �O N v) M �!) V1 0 \D o `c � h V) V) h � �/) v) v') V1 V) 10 h v') V) v) �c 7 V) V) V) V) v) V1 _N 14 N � Q V L _ 'r 00 00 V') Vl ,-• 01 N n M v) .--� [� N d n vl N �D N O n Cl M V) M oo oo W D\ .-. -. V) �) t v) t t N O M �D D\ M M V1 00 D\ v) O N O t� t t N t 00 w N r- N v) n O C, O\ M M t M M N W c N DD 'o t t r- 00 c, N r- N 0 0 0 0 0 v) O O t O O, v) N a\ -•+ N 0 0 0 0 0 0 10 M t M W Z O O O O O M O O 0 0 0 0 t O O O 01 O �c O M O O M 00 O 00 O O 00 N U cz t. N CG O m Q c °> w ro o c7 co =¢ .; m U z y c. ro o p o ro E o Q o � x' �-, c .c ro E Fj � � R N iC i q ❑ r. ro ° Z ' U � � cu v ro> '� °' N O a� 5 � � L U o ro o ro 0�� o o o aci o aNi c o 3 o c 4 'Q v t k o t o c :° abi ro c 0 > o o 0 U V U C7 C7 C7 a° a� cG cn V) FM- Fro- H J 19C -7 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE PERSONNEL SERVICES DEPARTMENT 2006 PERSONNEL SERVICES DEPARTMENT RECORD RECORD RECORD RECORD CATEGORY SERIES DESCRIPTION DATES RECRUITMENTS Background Materials used in the preparation/ March 2008 and prior Materials implementation of recruitments. ** Bilingual Forms certifying bilingual capabilitiesfaf March 2008 and prior Certification employees reGeOVOR9 bilingual pay andfor Forms applicants for recruitments which require bilingual capabiliity.* Ethnicity Stubs From employment applications submitted at March 2008 and prior recruitment time, are kept for outreach purposes.* Examination Examination answer sheets completed by March 2008 and prior Answer Sheets applicants during testing process and other testing materials.* Official Eligible Eligible lists signed by City Manager. Lists of March 2008 and prior Lists individuals placed on an eligible list card for hiring purposes (copies only- original signed eligible lists are with recruitment file foldar (according to classification title)). ** See attached spreadsheet, dated February 28, 2011, with recruitment files to be purged /digitally imaged. * Will be purged ** Will be digitally imaged PREPARED BY: Susan Waccthen__f�1or Date Kathie S. Gonzalez Executive Director of Personnel Services RECORDS DESTROYED: Number of Boxes 19C -8 CONSENT BY: Kathie S. Gonzalez Date Executive Director of Personnel Services APPROVED 3�1�( Jos4ph Straka Date Interim City Attorney 19C -9 .O a) � c Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q CUZZZZZZZZZZZZZZZZZZZZZZZZz U m w � — 0 a) a) -0 Cu to M= r- O r- O C O o r- 0 r- 0 r- 0 r- 0 r-- 0 M 0 M 0 r- 0 M 0 r- 0 M 0 r - 0 M 0 O W M 0 O M 0 M 0 M 0 M 0 M 0 M 0 W CU (V LO 0 r- r, O M r r— LO (o (n M O M O (0 C C) r rt M r— M O O O N O M r r 0 (N (N CO r C C) 0 04 N r O O N E N OO M Z r O N r M 10 r N r- r r Z (') Z CN N N (V N N O C) t-- r O r r O O r 0 0 0 r O O 0 0 0 0 0 0 Ew z Z z 70 r - Mr- tir-tir- M�r- r-r�tir-r,- r- MtitiMMtir-M 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 o 0 v (o I- 'T d' O N N M ti r N LO r r r r o r r r— V' M (o (n Q O N O N (o O M r O r O r M N O r O O M N O P- N r N 0 0 0 M 0 0 C) N N (� •- O o 0 0 0 r o O N r o O r M O N r r r r r r� O M o 0 0 0 r o N r N r 0 O) C r— ti M r- ti ti r- r— M r` r— r— r— ti r- ti (0 r- M M ti M ti ti r- O O O o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 m 0 C) M N N (0 -t O (f) N O d' L O M M M r M M M It (f) r r- J Q r M O O O r N N 0 0 0 N CN r r r O N C) 4) O LO M r- O M N r- M O LO N O O r- r— 11- r- r r r- N x 0 0 0 0 0 0 0 0 0 0 0 0 r r r 0 0 0 o r O r r r a) L U U) C O U L a) 2 ca -(am Q U O Q) C CL c C N i O (B w a) fn 7 a) a) C Q C N m C Q) N (L4 4? m fn Cu O (V N 2� m (a (II -_ m a) � U O F- - Q (L6 O a (LII J O O U U C L- U O C L •a? fII = 0 0 Cu 0 0 i a) C m E L O Q O` w (J O - _ U E E E O M (n L U yN� a) O m fn a) Q) "Q N CY) Q to Q Q r y L N N O E C (6 a) a) a) U L O U L p L "' - m \ C (a m m m O) CU 0 N to V in V (� > a) C ' a) C O C Q) to N (n c C a) o L (D ' V C Q U Q U Q U- Q m N a) C C C Q Q w c c O i O C C () a) a) O C Cu o — N oa W W O . c Q .0 Um 2U m U M C C C (Q a a O O O � CO v Q aa) ) o E o2 a) 0 o �°Q (D (D a) CL L Oo Y Z U U "O to O� a) p- � CU Q Q Q Q m U J d d d ( N o m C CY) a) � E L) m E M 0 O M 0 r- 0 O M 0 M M M M r- M O M M M r- M� r- M M M M M 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O Q 7 C m z p) M O O (0 (� N M M r M"t LO M LO LO cr O Co (0 (0 r (p r N M M Co O O M r� -4 X 0 0 0 0 if ) LO 19C -9 19C -10 Memo To: Maria Nuizar, Clerk of the Council From: Ann Matulin, Police Records Manager CC: Date: March 4, 2011 Re: RED FOR OESTRUM OF RHM The Police Department requests Council consent to destroy city records on the attached listings, in accordance with the retention schedule outlined in City Council Resolution 2006 -045. Thank you. Ann Matulin Police Records Manager 19C -11 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: Field Operations /Canine, Animal Services, Air Support Record Record Series Record Description Record Dates Category Training Records K -9 Training Training Records of K -9 officers Oct 2005 and Records and dogs prior Statistical K-9, Animal Forms used to collect crime or Oct 2005 and Reports Services and Air section activities in K -9 /Animal prior support Services /Air Support Supervisor Logs Sgt. Shirey, Cpl. K -9, Animal Services and Air Oct 2008 and Van Es, Cpl. support supervisor logs prior Graham, ASO II Berg Correspondence Council Requests Forms used by the Mayor and Oct 2005 and Councilmembers to request prior information and /or certain staff actions. Correspondence Incoming and "Loose" correspondence that Oct 2005 and Outgoing General cannot be legitimately attached prior Correspondence to some major record series Budget Budget back -up Budget preparation sheets and Oct 2005 and documentation other support documents prior Agreements City Council Police /Section level copies of Oct 2005 and approved; city contracts entered into by the City prior manager relating to goods, services, legal approved; settlements and program agency /department responsibilities head approved Prepared by: Name: Marty Shirey Title: Sergeant Date: 10 -11 -10 Number of boxes to be destroyed: 3 Page 1 1VC _ 12 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: Field Operations /Canine, Animal Services, Air Support CONSENT BY: Paul M. Walters, Chief of Police Date Police Department APPROVED BY: eph Straka Office of the City orney Records destroyed by: Date of destruction: 'A -z-4 Date Print Name & Badge # Signature Once your records have been destroyed return this form to the Records Manager and keep a copy of this form for your files. Page 2 16C -13 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: POLICE PERSONNEL SECTION Record Category Record Series Record Description Record Dates Applicant Files By Name Background files of Applicants not January 2005 — Selected December 2005 Worker's Comp By Name Files of Employee Injuries January 2005 — December 2005 Prepared by: Name: Gloria Gonzales Title: Senior Office Assistant Date: February 22, 2011 Number of background files to be destroyed: 187 Number of Workman's Comp files to be destroyed: 161 CONSENT BY: Paul M. Walters, Chief of Police Date Police Department APPROVED BY: I DA'a � \ .0 �— oseph Straka Office of the Ci Attorney Records destroyed by: Date of destruction: Z 2Z� 0 Date Print Name & Badge # Signature Once your records have been destroyed return this form to the Records Manager and keep a copy of this form for your files. Page 1 f§C -14 February 17, 2010 WITHDRAWALS, DISQUALIFICATIONS AND DESLECTED FILES — YEAR 2005 AGUILAR, Oscar Detention Officer — Bil AHMATH, Mouslin Police Recruit — Bil ALFARO, Martin ALVARADO, German ALVAREZ, Gerald ALVAREZ, Josue AMADOR, Robert ANDRADE, Joel ANTILLON, Christian ARMAS, Daniel ARQUILLANO, Carlo ARREDONDO, Gabriel ARREOLA, Juan ASCINCION, Vincent AYALA, Jose ARZATE, Marco BACH, My Ky BADILLO, Adriana BARRETT, Elizabeth BARSAMIAN, Stephen BEAN, Schyler BEAUMARCHAIS, Gregory BERNAL, Julio Lateral Police Officer — Bil Police Recruit — Bil Police Recruit Detention Officer — Bil Police Recruit — Bil Academy Grad Police Recruit — Bil Police Recruit — N/B Police Recruit Police Recruit — Bil Police Recruit Police Evidence &Supply Spec. Lateral Detention Officer — Bil PIT Equipment Service Attendant Police Recruit — Bil Management Aide Police Recruit Police Recruit — N/B Lateral Police Officer - N/B Police Recruit — N/B Police Recruit — Bil 19C -15 BONALES, Gilberto Police Recruit — Bil BOU, Christopher Police Recruit — Bil BOYD, Richard Lateral Police Officer BRISENO, Albert Police Recruit — Bil BUBNIS, John Lateral Police Officer CAMACHO, Paul Lateral Police Officer CANO, Michael Academy Grad CANO, Salvador Police Recruit - Bil CAPASSO, Christopher Police Recruit — N/B CASTILLO, Elizabeth Correctional Officer — Bil CATALAN, Hector Lateral Police Officer CATALDO, John P/T Park Ranger CETA, Jose Police Recruit — Bil CHOI, Young Police Recruit — Bil CISNEROS, Jorge Correctional Officer — Bil CLARDY, Jason Police Recruit CLARK, David Academy Grad COF, Ryan Police Recruit COLEMAN, Christopher Police Recruit — Bil COLE, Leisure Police Evidence & Supply Supervisor COOTER, Galen Police Recruit CORTEZ, Roberto Police Recruit — N/B CORTEZ, Heriberto Police Recruit — Bil COTA, Jesus Police Recruit — Bil CUNNINGHAM, Pablo Lateral Police Officer — Bil 19C -16 DABUET, Renwick DA -PENA, Jeremy DARWIN, Brian DE LA RIVA, Dominic DEDMON, Ryan DIAZ, Xavier DIZON, Nicolas DISNEY, Jeffery DORANTES, Jose DORSEY, Mark DUGAN, Shawn EDWARDS, Scott ELDRIDGE, Mark ELSMORE -ROSS, Vicki Ann ESPINOZA, Paul FANDINO, Hercules FERNANDEZ, Eric FERNANDEZ, Judy FIKE, Dustin FIMBRES, James FLORES, Issac FRANCIS, Thomas GAMBOA, Otoniel GARCIA, Salvador GARDUNO, Elizabeth Police Recruit Police Recuit Lateral Police Officer P/T Senior Clerical Aide Academy Grad — N/B Police Recruit — Bil Police Recruit — N/B Police Recruit Police Recruit — Bil Police Recruit Police Recruit Lateral Police Officer P/T Equipment Services Attendant Senior Accounting Assistant Lateral Police Officer — N/B Police Recruit — N/B Police Recruit — Bil Correctional Officer — Bil Police Recruit Lateral Police Officer — Bil Lateral Police Officer — N/B Police Recruit Police Recruit — Bil Police Recruit — Bil Correctional Officer — Bil 19C -17 GIODANO, Jeanine GOMEZ, Nathon GONZALES, Anselmo GONZALES, Jose GONZALES, Lisa GONZALES, Shamir GREEN, Jesse GUBERNAT, John GUERRERO, Melissa GUTIERREZ, Brenda GUERRA, Edwin HARBISON, Michael HARRIS, Michael HAZLETT, Joshua HENN, Corey HENRICHS, Troy HWAG, David HOUSHMAND, Christopher ITAN I, Hassan JACKSON, Ryan JAEKEL, Eric JENNINGS, Walter JIMENEZ, Fernando JIMENEZ, Jeanine JUDD, Sean Police Recruit — N/B Police Recruit Lateral Police Officer — N/B P/T Police Cadet — Bil Lateral Correctional Officer — Bil Correctional Officer Lateral Police Officer Lateral Police Officer — N/B Academy Grad P/T Police Cadet Police Recruit — Bil Lateral Police Officer Lateral Police Officer Police Recruit Academy Grad — N/B Police Records Specialist Police Recruit — N/B Police Recruit Lateral Police Officer Police Recruit Police Recruit Police Recruit Lateral Police Officer — Bil Lateral Police Services Dispatcher Police Recruit 19C -18 KERR, Gary LASSITER, Jack LEF, Russell LEON, Luis LEQUANG, Hoang LOGAN, Sean LOPEZ, Alfredo LOPEZ, Advaro MACIAS, Arturo MACIEL, Brandon MADDEN, Michael MAGDALENO, Kim MARAVILLA, Roberto MANEAFAIGA, lupeli MARCHENA, Jorge MARELLA, Peter MARTINEZ, Fernando MARTINEZ, Hector MAYFIELD, Guillermina MARTINEZ, Ruben MCGOWAN, Justin MCDERMOT, Michael MCKECHNIE, Christopher MEDINA, Gerrardo MEEHAN, Joseph Police Recruit Lateral Correctional Officer Lateral Police Officer Correctional Officer — Bil Lateral Police Officer - Bil Police Recruit — Bil Correctional Officer — Bil Police Recruit — Bil Police Recruit — Bil Lateral Police Officer Lateral Police Officer Correctional Officer — Bil PIT Police Cadet Police Recruit — Bil Lateral Police Officer — Bil Lateral Police Officer — N/B Police Recruit — Bil Police Recruit Academy Grad Correctional Officer — Bil Police Recruit Police Recruit — N/B Police Recruit Correctional Officer Academy Grad 19C -19 MELENDEZ, Rene MEJIA, Mauricio MENDOZA, Maria MOLINA, Michael MOORHOUSE, Scott MORENO, Gabriel MORGAN, Craig NEGRETE, George NYBERG, Morgan OCHOA, Alvaro OLIVARES, Octavio O'Neil, Jose Caleb PADILLA, Daniel PANTER, Shawna PAREDES, Janet PAYAN, Carmen PEPE, Emidio POWERS, Andrea PRECIADO, Jaime Police Recruit — Bil Police Recruit — Bil Senior Accounting Assistant Lateral Police Officer — Bil Police Recruit — NIB Police Recruit — Bil Police Recruit — NIB Police Recruit -Bil Police Recruit — NIB Detention Officer — Bil Police Recruit — Bil Academy Grad I Police Officer — Bil PIT Park Ranger Police Recruit NIB Detention Officer — Bil Parking Control Officer —Bil Police Recruit — NIB Police Recruit — NIB Police Recruit — Bil RAINEY, Louis Management Aide RANDAL, Jaime Lateral Police Officer — NIB RASCH, Alejandro Police Recruit — Bil REED, Chandra Lateral Detention Officer NIB REINMILLER, Cory Lateral Police Officer NIB REYES, Erendida Account Assistant (Police Fiscal) 19C -20 REIMANN, Mark RIOS, Cesar RIVERA, Omar RIZER, Amber ROBLES, Yigael RODRIGUEZ, Eileen ROMERO, Benjamin SAHAGUIN, Candelario SALAS, Gabriel SALAZAR. Edson SALCEDO, Julio SANTAMARIA, Daniel SCOGGINS, James SOUZA, Christopher SPEER, Kyle SMITH, Jason STEUER, Denise STEVENSON, Monica STRETER, Thomas TA, Truong TENA, Juan TIGNER, James IV TORRES VAZQUEZ, Sandra TOYER, Connie Ann TREJO, Giovanni Police Reserve Officer Police Reserve Officer Detention Officer — Bil Police Recruit — N/B Police Recruit — Bil Police Recruit — Bil Police Recruit — Bil Police Recruit — N/B Police Recruit — Bil Police Recruit — Bil Police Recruit — Bil Parking Control Officer — Bil Police Recruit — N/B Police Recruit - NIB Police Recruit — N/B Police recruit — N/B Academy Grad Police Officer — N/B Detention Officer — Bil Lateral Police Officer Police Recruit — N/B Reserve Police Officer Lateral Police Officer — N/B Detention Records Specialist Lateral Police Services Dispatcher Lateral Police Officer — Bil 19C -21 TUOCH, Nathan Police Recruit — N/B TUTTLE, Peter Police Recruit — Bil VARGAS, Rueben, Jr. Police Cadet — Bil VASQUEZ, Marco Reserve Police Officer VELLA, Nicholas Lateral Police Officer VIDAL, Eduardo Police Recruit — Bil VILLA, Anthony Parking Control Officer — Bil WALTERS, Michael Lateral Detention Officer WELP, David Lateral Police Officer — N/B WESTRA, Justin Police Recruit — N/B WILLIAMS, Jay Police Recruit — N/B WU, Edwin Police Recruit — Bil ZAMORA, Jose Detention Officer — Bil ZIMARDO, Daniel Academy Grad Police Officer — N/B /gg 19C -22 February 22, 2010 WORKER'S COMP FILES - YEAR 2005 JANUARY Employee Name Badae Number ALVAREZ, Nivaldo 2919 CADDELL, Alan 1377 GRAHAM, Malcolm (Kevin) 2156 HERNANDEZ, Liz 2541 MACIHA, Greg 1659 STIRES, Ronald 1829 VELASCO, Teresa 2420 ZAVALA, Marco 0370 FEBRUARY BARRERA, Ross 2016 BISHOP, Mark 2060 FLORES, Jesse 2514 GALAZ, Vincent 2431 GARCIA, Frank 2410 HARVEY, Sondra 2548 HINOJOSA, Rehel 2237 LOPEZ, Alejandro 1165 LOPEZ, Diego 2938 19C -23 LOPEZ, Jaime 1783 MAIOCO, Mike 2364 MAJORS, Eric 2666 MARTINEZ, Maria (Esther) No badge (Crossing Guard) SMITH, Stewart 1627 STOW, Donald 1996 THOMAS, Suzanne 2457 VARGAS, Martha No badge (Crossing Guard) MARCH BARTHOLOME, David 1660 BERG, Alan 2460 BERWANGER, James 2001 ELMORE, Donald 1696 JANSEN, David 1566 LEAMER, Bruce 1421 TANKSLEY, Rufus 1926 VELASCO, Teresa 2420 APRIL CORONA, Mario 2248 ESTRADA, Mauricio 2583 GARCIA, Israel 2032 GOMEZ, Irene 2875 GUTIERREZ, Edward 2560 19C -24 JONES, Kathie 0916 MENENDEZ, Nelson 2595 MORENO, Manuel 2837 RODARTE, Gerardo 2630 RODRIGUEZ, Julian 2836 SALO, Tyler 2896 STILLS, Kenneth 2957 THIELMAN, William 2134 VIRAMONTES, Jason 2880 CARRILLO, Lorenzo 2175 CHAVEZ, Steve 1911 CORBY, John 1875 FLORES, Jose 2363 REVERE, Christopher 2773 WHITLEY, Brian 2498 MAY ALCANTAR, Abel 2580 BARRERA, Ross 2016 COLEMAN, Lawrence 1694 HARVEY, Sondra 2548 JUAREZ, Katherine 2983 LEE, Tony 2903 LE GEYT, Kelvin 2855 LOPEZ, Alejandro 2344 19C -25 MIRANDA, Gary TREVINO, Thelma ROMAN, Martha SCHWACHER, David THIELMAN, William JUNE BUCKLE, Sue CAMPUZANO, Mary CASTRO, Alfredo GALARZA, Gianni GALLO, Vivian GUERRERO, Alma LEAMER, Bruce MARCKSTADT, Rick MCCARTHY, Michael MURRAY, Marianne OLIVER, John PAGE, Joni ROSE, Melody SANTOS, Laura SCHEER, William SILVA, Adrian STILLS, Kenneth STOW, Donald 1348 2745 2491 2683 2134 2530 2895 2991 2594 1131 2968 1421 1999 2722 1873 1567 2487 1579 2744 77303 2668 2957 1996 19C -26 JULY GONSALVES, Paul 1251 LAMBERT, Doris 0446 QUELLER, Phil 1900 REYNOSO, Rodolfo 2581 ESPARZA, Rosa 2672 SANCHEZ, Otilio 2703 SWEET, William 1805 AUGUST ARMSTRONG, James 2057 CARRANZA, Art 2321 CASTILLO, Ron 1582 JUAREZ, Frank 2481 LEIVA, Carol 2628 OROPEZA, Abel 2499 PONCE, Elizabeth 2446 RAMIREZ, Daniel 2981 RIVAS, Eric (DOI 8/24/04/ 3/27/06) 2679 RIVAS, Eric (Doi 9/13/05) 2679 RODGERS, Terrance 1986 THIELMAN, William 2134 URTEZ, Alex 2521 19C -27 SEPTEMBER ANDRADE, Roland 2941 ASTRAN, Marian 1541 BUELNA, Michael 1617 CENTANNI, Jon 1711 ELMORE, Donald 1696 GALLEGOS, Sandra 2742 GARCIA, Israel 2032 GEIST, Rosemary 2490 KLOSS, Elizabeth 2486 LAMPMAN, David 1836 LOPEZ, Sandra 1373 LUNA, Pedro 2412 MACCHIAROLI, Michelle 2704 MARCKSTADT, Rick 1989 RIVAS, Eric 2679 SARABIA, Pablo 0182 OCTOBER BROWN, Kevin (Doi ion iwm) 1424 BROWN, Kevin (Doi 10i21io5) 1424 DELANEY, Robert 0269 ESTRADA, Donna 2207 GALARZA, Gianni 2554 LOPEZ, Jaime 1783 19C -28 MANEATAIGA, lupeli 2907 MANRIQUEZ, Jaime 2591 MUNOZ, Patricia 2093 MURRAY, Marriane 1873 STILLS, Ken 2957 NOVEMBER ALVAREZ, Nivaldo 2919 BECERRA, Jose 2147 BUELNA, Michael 1617 CERVANTES, Rene 2528 DEMOPOULOS, Eric 2088 DONNELLY, Patricia 1741 GALAZ, Vincent 2431 GRAHAM, Antonio 2965 GRAVES, Monica 2400 GUTIERREZ, Edward 2560 HENRY, Tod 2336 ORTEGA, Leticia 2911 MAJORS, Eric 2666 OLIVER, John 1567 PLETL, Greg 2701 VO, Huong (Margaret) 1069 VILLEGAS, Ernest 3015 WILLARD, Ken 2106 19C -29 DECEMBER CARRANZA, Art DONNELLY, Jim GALEANA, Luis GOMEZ, Angelina GOMEZ, Irene GUTIERREZ, Edward LIZARDI, Oscar MAROKSTADT, Richard MARTY, Joseph ROMERO, Ben VIRAMONTES, Jason WATSON, Michael /9g 2321 1639 2933 1571 2875 2560 2880 1999 2942 2964 2880 1081 19C -30 Division Name: CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT POLICE PERSONNEL SECTION Record Category Record Series Record Description Record Dates PERSONNEL Name /attached Personnel files / separated employees All 2005 PERSONNEL I Name /attached I Background files / separated employees I All 2005 Prepared by: Name: Debbie Lampman Title: Police Personnel Specialist Date: 2 -24 -11 Number of boxes to be destroyed: 86 Files CONSENT BY: �i Paul M. Walters, Chief of Police Date Police Department APPROVED BY: seph Striko Date Office of the CAy Attorney Records destroyed by: Print Name & Badge # Signature Date of destruction: Once your records have been destroyed return this form to the Records Manager and keep a copy of this form for your files. Page 1 o44C -31 SEPARATED EMPLOYEEb FROM 2005 ADAMS, GARY SAGSTAD, VIRGIL BARTHOLOME, DAVID BONILLA, EDWIN BROWN, KEVIN BRYWN, JOHN CASH, STACI CHOI, JUN CLINKINGBEARD, JANELL FLORES (Rodriguez), ALEJANDRINA GABS, STEPHANIE GILLEY, STEVEN GOMEZ, HECTOR HART, KIRK HAWKINS, DERRICK HEIM, WILLIAM HUBBARD, MARCUS JAFFE, STEPHANIE KLOSS, ELIZABETH LABS, GARY LEGEYT, KELVIN LOPEZ, GABRIELA MANDELL, IRMA MCCARTHY, ANlNETT E MUNSEY, ANDREW OK, JOHN PAGE (RASE), JONI ORTIZ, RUBY PALENCIA, VELKY PEREZ de ROMERO, LAURA RAMIREZ, RICHARD RIMAT, ERIC RIVERA, JAVIER RODRIGUEZ, ISMAEL ROSE, MELODY RUSSO, NICK SAADEH,GEORGE SAMPSON, CHARLOTTE SOWARD, NANCY TALAVERA, LIDIA TAPIA, ALEJANDRO VALDEZ, MARILYN VARGAS, FRANK 19C -32 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: PROFESSIONAL STANDARDS DIVISION Record Category Record Series Record Description Record Dates ADMINISTRATIVE EMPLOYEE ACCIDENTS INVOLVING ON- 1/1/04 to INVESTIGATIONS ACCIDENTS DUTY DEPARTMENTAL 12/31/04 PERSONNEL ADMINISTRATIVE K-9 REPORTS INVESTIGATIONS OF K -9 BITE 1/1/04 to INVESTIGATIONS INCIDENTS 12/31/04 ADMINISTRATIVE USE OF IN- CUSTODY INJURIES AND 1/1/04 to INVESTIGATIONS FORCE USE OF FORCE 12/31/04 ADMINISTRATIVE OFFICER INVESTIGATIONS OF OFFICER 1/1/04 to INVESTIGATIONS INVOLVED INVOLVED SHOOTINGS 12/31/04 SHOOTINGS CITIZEN BY INVESTIGATIONS OF ALLEGED 1/1/04 to COMPLAINTS EMPLOYEE EMPLOYEE MISCONDUCT 12/31/04 NAME Prepared by: Name: J. Smith Date: October 12, Title: Inspector 2010 Number of boxes to be destroyed: 20 CONSENT BY: Paul M. Walters, Chief of Police Police Department APPROVED BY: Date OQ,�L JZ � io 4C - 2 Joseph Straka U Date Office of the City Attorney Page 1 11fdC -33 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: PROFESSIONAL STANDARDS DIVISION Records destroyed by: Print Name & Badge # Signature Date of destruction: Once your records have been destroyed return this form to the Records Manager and keep a copy of this form for your files. Page 216C -34 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: Jail Bureau Record Record Series Record Description Record Dates Category Jail Inmate Inmate complaints and 00, 01, 02 Administrative Grievances dispositions Reports Jail Inmate Mail Inmate mail summary, Check 01 Administrative Logs Acct., Inmate Funds Reports Jail Operations Population Head count roster, Key count 00,01 Roster roster Jail Operations Incident Report Administrative reports, Officer 97,98,99,00,01,02 Incident reports, Inmate disciplinary reports Jail Operations Shift Activity Officer daily logs, Supervisor daily 98,00,01,02 Log logs, Shift assignments Commissary Deposits Deposit slips 98,99,00,01,02 Commissary Checks Canceled checks 00,01,02,03,04 Jail Chits Time -off, Overtime, Sick, Access 07,08 Administration Card Logs Jail Forms Obsolete booking forms N/A Administration Prepared by: Name: T. Velasco #2420 Title: Correctional Supervisor/ Records Date: 10/19/2010 Number of boxes to be destroyed: 95 Page 1 16C -35 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: Jail Bureau CONSENT BY: Paul M. Walters, Chief of Police Date Police Department APPROVED BY: �4 z�� ;eph Stra Date Oce of the Attorney _____ _ -- -__ --_ =___= �______________ =__ == Records destroyed by: Print Name & Badge # Date of destruction: Signature Once your records have been destroyed return this form to the Records Manager and keep a copy of this form for your files. Page 2 16C -36 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: Record Record Series Record Description Record Dates Category Payroll Back up Leave of Absence chits; documentation RPTR attendance reports; Employment Certification forms Temporary Upgrade forms Shift differential pay forms Salary Correction forms Longevity Cash Out forms Disciplinary Action forms Part time payroll timesheets Court Pay sheets Pay Accrual reports IOD /LOA work status sheets Prepared by: Name: Lori Brown Title: Police Fiscal Supervisor Date: Number of boxes to be destroyed:.. 25 CONSENT BY: Paul M. Walters, Chief of Police Police Department APPROVED BY: Date Joseph Straka Date s Acting City Attorney Page 1 1 9C -37 12/31/05 and prior CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: Records destroyed by: Print Name & Badge # Signature Date of destruction: Once your records have been destroyed return this form to the Records Manager and keep a copy of this form for your files. Page 2 16C -38 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE POLICE DEPARTMENT Division Name: Investigations Record Category Record Series Record Description Record Dates Orange County Record of cases filed with court Jan 1, 2006 Superior Court through Dec 31 Transmittal 2008 Record Prepared by: Name: Cpl. Maciha 1659Title: Police Officer Date: 12 -29 -10 CONSENT BY: Paul M. Walters, Chief of Police Police Department APPROVED BY: Date oseph Fletc er)l Da e City Attorney ------------------------------------------------- - - - - -- - --- - - - - -- ------------------------------------------------------- - --- - - - - -- Records destroyed by: • MACIHA #1659 P�intt Name & Badge # Sign re Date of destruction: Once your records have been destroyed return this form to the Records Manager and keep a copy of this form for your files. Page 1 of 1 C �!( / , � � fin' ,.. 1,a� \: •. ',Y �. _.1� -� yo of F;. .� 19C -40 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: CITY OF SANTA ANA GENERAL PLAN HOUSING ELEMENT ANNUAL PROGRESS REPORT V 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 submittal of the General Plan Housing Element Annual Progress Report to the State of California Housing and Community Development (HCD). DISCUSSION The General Plan Housing Element is a comprehensive planning document designed to address current and future housing needs for Santa Ana and surrounding region. The document includes the City's housing vision to meet community needs through 2014. The housing vision is expressed in the goals, policies and implementation programs as stated in the Housing Element. The purpose of the Housing Element Annual Progress Report (Exhibit 1) is to describe the activities and accomplishments made in 2010 to implement the City's housing vision. In particular, the report includes a summary of Santa Ana's progress in meeting its share of the Regional Housing Needs Allocation (RHNA). As detailed below, of the 3,393 RHNA allocation assigned to Santa Ana for planning period 2006 -2014 a total of 850 new housing units, or 25 percent of the RHNA new construction target, has been completed through 2010. Progress Towards 2006 -2014 RHNA Goal Total Housing Total Remaining RHNA units by RHNA by Income Income allocation 2006 2007 2008 2009 2010 2011 2012 2013 2014 Income Levels Very Low 694 0 1 0 6 0 26 32 662 Low 574 0 0 0 5 0 1 5 569 Moderate 665 0 0 0 0 0 0 665 Above Mod. 1,461 67 109 506 97 34 813 648 Remaining Need for RNHA period Total RHNA: 1 3,393 1 67 1 109 512 1 102 1 60 850 ► ► ► ► 2,544 19D -1 Housing Element Progress Report March 21, 2011 Page 2 Housing Element Annual Progress Reports are due to the State Housing and Community Development (HCD) and the State Office of Planning and Research no later than April 1st of each year, if a charter city's housing element identifies the Acquisition and Rehabilitation of existing housing to meet Regional Housing Need Allocation (RHNA) for the construction of new housing. In addition, the Progress Report is required to be eligible for certain State funding programs such as the Housing Related Parks Program (HRP). Per Government Code 65400, the report is to be considered at a public meeting before the legislative body where members of the public may provide testimony and written comments. FISCAL IMPACT There is no fiscal impact associated with this item. 2A� Ja . Trevino Executive Director Planning and Building Agency MM:rb mm\ Housing\ RHNA\annualreport\2010\RFCAMar21 Exhibit: 1. General Plan Housing Element Annual Progress Report UI MA City of Santa Ana ANNUAL GENERAL PLAN HOUSING ELEMENT PROGRESS REPORT Submitted by Planning and Building Agency March 28, 2011 Exhibit 1 i'] 051 City of Santa Ana ANNUAL GENERAL PLAN HOUSING ELEMENT PROGRESS REPORT (2010) TABLE OF CONTENTS Contact Information II. Progress Report: Attachment 1 • Table A. Annual Building Activity Report- Low -, and Very Low - Income Units and Mixed - Income Multifamily Projects • Table A2: Annual Building Activity Report - Summary for Units Rehabilitated, Preserved and Acquired pursuant to GC Section 65883.1(c)(1) • Table A3: Annual Building Activity Report Summary for Moderate - and Above Moderate - Income Units • Table B: Regional Housing Needs Allocation Progress • Table C: Program Implementation Status 19D -4 MAYOR Miguel A. Pulido MAYOR PRO TEM Claudia C. Alvarez COUNCIL MEMBERS P. David Benavides Carlos Bustamante Michele Martinez Vincent F. Sarmiento Sal Tinajero CITY OF SANTA ANA PLANNING & BUILDING AGENCY 20 Civic Center Plaza (M -20) P.O. BOX 1988 . Santa Ana, California 92702 (714) 667 -2700 • Fax (714) 973 -1461 www.santa- ana.org Department of Housing and Community Development CITY MANAGER David N. Ream CITY ATTORNEY Joseph W. Fletcher CLERK OF THE COUNCIL Patricia E. Healy ANNUAL GENERAL PLAN HOUSING ELEMENT PROGRESS REPORT CONTACT INFORMATION City or County Name: City of Santa Ana Mailing Address: 20 Civic Center Plaza, Santa Ana, CA 92701 Report Contact Person: Karen Haluza Title: Planning Manager Phone: (714) 667 -2728 FAX: (714) 973 -1461 E -mail: khaluza @santa- ana.org Reporting Period by Calendar Year: from Jan. 1, 2010 to Dec. 31, 2010 U: \MMCCann \WP51 \HOUSING \RHNA \AnnualReport\ 2010 \PartsofP,pt \COntactInfOPM.doc 19D -5 ro c� dm ER a F•- O = a w 0 CO d LU o ro O wi m N CL Y.� N Z H � U w W �- J W J ao D_ Z Z Q 0 0 N M ci d 0 c a � O ui N w O U � a 0 •L d c d O v = y O _ 0 �y y o- r " o a U ?. m E Z w Y 75 m E N V � C 0 070 O m x �a •� C - f6 :r a 3 cn O C J a 3 o m J 7 d C i k% f� � « � � O 0. LLJ� 2 Cl) E LLI � t R 0 cm W J r LU a � � 2 v -itm W 2 � 2 2 2 « 0 k \ R � . ol o ® C! 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O 4 61 y X C X y C O O E '� i 0 61 y c r 'O '° 0 0 7 7° O •a C p N= R R L y 61 y. p p O G N i a E 3 Q R a L c 7 :7 O 0 N O y ° CL C C > > in 0 0_ o 0 c E C CA •� = C C C O x m a s D .� 0 W O d a s a a+ y E d d �C m °a 39 R O R , m ° 0 C � r+ L 'O i C c"�p r3 •C 'O H E y E a V a 61 c E O L �cp 3 Q CL a p V N CL p R R i R y O a c `O R y C d R R y y 'a _O R C y a+ •7 E ++ R R .Z R R R 7 C -S I y c 0 a3 p L y V y E O O .v 'a y 9 O N ++ C •n c a d c tU V C w O E C C d L T 'O a+ a s R V N •O y E 2 Lu a E 6 E c O £ y R y N N i 'fl 9 C +L+ o m C > p tU V .y i° N O N C'% CQ w ^ L 7 �p bA CL c m R n 3 3 v ° E c= m_ a 0 o CL ° c E R rL+ c R i d N .� aL+ L a C O O C d Y Oo> ° CL ° o �R Q oc y to n_ E C N N a eo c ` o y In o m o O o m ` C C 00 V N N 6 o 3 °' y a Q � 06 N t7f N p M M N M M N C U- 0 G � '= W u Q Q � 2 ce u l7 � a m ~ w V w 2 Q � Z Q 2 o o o V 2 a O 2 Q 4 ,g 1 jW -C G • F S a a Q ui z W u Q z a H z N O r O N O N 0 C W Y 0 E 0-0 ` E. 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O£ p 6L7 •° E E S C R Q L d r C O O A Z y a y > aC c L c 77L c o c v= in 0 0 0 v x v x d $: a 77A 3 H •° 3 m H � m c ` 61 Y O a+ E C y R w R 0 0 3 7 .V.. p 0 0 0 y R R 9`0 mF C C t o C O .2 bA R y N1 � 0 Y— i3 O i E V •Z 3 C O d ii R y a C O E R bO V y y R p E 4 ba 67 L R _O y O 0 0. °� N R O` co 6 d V O co a. CL d = R V o. C D •y y a y .5 •'3b '3 E E t a it R 0 a. E up R E R C d V4 67 y 67 L y G ,;; R p 'O •O G y R+'' 67 Q R C N a •k m a> 67 0 w O c y ° L X y .°r � tiq . a •'?+ a C 67 Y d y67,� w O R w 0 0 C 67 E B 7 0 V I i C d y R 67 N 0 i = a t � •9`9 d 0 C N N N . t d O N n 63 Q bL c Q i w v Q VI +L. Q V e 'y c O 7 � x bA — O y R °m a x i g o 2_` c a. 0 E R E 67 O Vi 67 v o ~ M co M M a 6 R� a Q <Y W Z z Q zZ N O F c d E s u a W u a c. u ui N CC U 0 � a m L uj ~ 2 d tj V w 2 Q O Z Z Q 1 e Q 2 Q �o V � Z C O 2 li Q cc j 1 � 19D -21 a Q z u d z d H z N O u eo C nn C „ = c 0 0 = 0 N 7 R G 61 C C 61 c Z C O R r IC p w V t10 d +y 1=1 C 'a0-+ i6'./ =� R +L. R y r°+ N Ig , C .3 d in t y 0 d r+ L d d 1�0 N '02 R= w Z 6 0 d N d d C n. UO UO E C D O E N a . N O i b`A O N no in o 6�-1 'O V v° c o c 3 `. z n y e z m a c •• c bn a1 = d m `^ .a� i d e+a R° j v N p n E bLq 2 y p '1A •. 'O 'L C 7 'O Co _w G Z E R N S O a0+ G n p L 6' O R w E E Y C H E R ` n ^� �= N O y NaS �_ 2 N N d L 3 V. bL E« a � i n 2 'O r a C O O L 4 V y N p n UqE O6C 'O M_ ; d° G•° 7 O Z Ci L O= C Z L C 2= V 3 N ++ 7 R N C 'O N t O .0 R UO V a°+ �+ ` C d a+ R y N d r. 7 n i 3 C° +• O C O G1 1618 C-F d ` 'O E C E p N i; Y d y V R N O =O N H R H V O O L eOi O N V R 32 r CD 4 d CO U.p C 61 r i= K •7 S C 7 0 0 0 0 N E E°x 2 d ci to G .� ; O s+ 61 . C O L G Cl Z R a �+ 00 t L • C +� ; taa 0 � y R R M L C n L T+ c • c O C O p c c o o C C � C 0 o c c Q vx vx max° = R y = w+ E 61 •6 i C —4 E N 1=/1 N R d CL 4) R C y E N R y4 n w C G O d 9 a`yr 'C 7 d O £. 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G 'y0 .O CO L V O d N N C 7 C R r Q t C C C R V V /do CL w Q to C N C O_ w' � O o S i R V E —° L60 6L1 4-i N 19D -24 Q W Z W U Z H Z N � E s � « 0 0 @ } � & § � § UtA ce O C q a %m / 0 § UJ� U 2 Q 7 � [ k / 0 ( G k § ) \ \ § / \ k § � � a � $ k ` »2 2 ■ZJ�2 £§ ■e£ �c •#&f2 B0G3 a£az� $8 ■ § ■� 2 � J � � R ■� � §CL ■ / _ammo - �C / 3 /Bk %§�ik )2B§LU =1 Lu \ � _ ■& CL k � Q §� ° / \ §z■ 19D-25 G •l REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED AGREEMENT WITH THE CALIFORNIA ❑ As Recommended STATE LIBRARY AND APPROPRIATION ❑ As Amended ADJUSTMENT FOR LIBRARY SERVICES El El on 1ST Reading ❑ Ordinance on 2 "d Reading ENHANCEMENT ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Authorize the City Manager and Clerk of the Council to execute an agreement with the California State Library in the amount of $28,000 for a Library Services and Technology Act grant for the Small Steps Towards Healthy Living program. 2. Approve an appropriation adjustment recognizing $28,000 in revenue account (no. 15411002 52001) and appropriating same to expenditure account (no. 15411193 various). DISCUSSION The Library Services and Technology Act (LSTA) is a federal grant program managed by the Institute of Museum and Library Services and administered in California by the State Librarian. Grants are intended to expand service to diverse ethnic and socioeconomic groups, underserved urban populations, and those with limited functional literacy. The State Library has awarded a $28,000 LSTA grant to the Santa Ana Public Library in support of its program, Small Steps Towards Healthy Living /Pasos Pequenos Para Una Vida Sana. The program will recruit Library Youth Health Ambassador teams from various youth organizations /clubs in the City. These young people will be trained in the skills required to produce bilingual videos informing the public on a variety of health and community related topics centered around themes of safety, education and community engagement. Youth participants will receive instruction on aspects of digital technlogy such as video production, film editing, sound editing, and broadcasting. Funds will be used to purchase video production and editing software and hardware, and to support personnel training costs. The Library will use in -kind personnel costs to provide the preferred 50% matching funds. The videos will be broadcast to Santa Ana residents as part of local CTV3 programming. 20A -1 Agreements and Appropriation Adjustment for LSTA Small Steps Grant March 21, 2011 Page 2 FISCAL IMPACT The appropriation adjustment Library in revenue account (no. (no. 15411193 - various). will recognize $28,000 15411002 52001), an Gerardo Mouet, Executive Directo Parks, Recreation and Community Services Agency in grant funding from the California State d appropriate same to expenditure account APPROVED AS TO FUNDS AND ACCOUNT: N M . y Francisco Gutierrez, m Executive Director Finance and Management Services Agency California State Library LSTA GA Page 1 Fiscal Office LSTA GRANT AWARD #40 -7793 P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: "Small Steps Towards Healthy Living /Pasos Pequenos Para Una System /Agency: Santa Ana Public Library CONSOLIDATED APPLICATION NOTIFICATION OF GRANT AWARD Library Services and Technology Act I. The recipient designated above hereby certifies to the California State Library, for a grant of funds in the amount of $28,000. This block grant will provide library services as set forth in the LSTA Service Project Application as approved and /or as amended by the California State Librarian. TERMS AND CONDITIONS The recipient agency and its named or designated fiscal agent hereby assures the California State Library that: 1. It is mutually understood between the parties that this grant award may have been written before ascertaining the availability of congressional appropriation of funds, for the mutual benefit of both parties in order to avoid program and fiscal delays which would occur if the grant award were executed after that determination was made. 2. This grant award is valid and enforceable only if sufficient funds are made available to the State by the United States government for the Fiscal Year 10/11 for the purposes of this program. In addition, this grant award is subject to any additional restrictions, limitations, or conditions enacted by the Congress or any statute enacted by the Congress which may affect the provisions, terms or funding of this grant award in any manner. 3. It is mutually agreed that if the Congress does not appropriate sufficient funds for the program, this grant award shall be amended to reflect any reduction in funds. 4. The California State Library has the option to amend the grant award to reflect any reduction of funds. 5. Upon the grant award approval by the State Librarian, one (1) completed set of this CONSOLIDATED APPLICATION NOTIFICATION OF GRANT AWARD and RECIPIENT CERTIFICATION will be sent to the subgrantee. Such copy shall be the officially approved agreement for the conduct of the approved project. 6. " Subgrantee" means the government or other legal entity to which a subgrant is awarded and which is accountable to the grantee for the use of the funds provided. 7. The subgrantee will make reports to the State Librarian in such form and containing such information as may be required to enable the California State Library to perform its duties. The subgrantee will keep such records and afford such access as the California State Librarian, California State Library may find necessary to assure the correctness and verification of such reports. California State Library LSTA GA Page 2 Fiscal Office LSTA GRANT AWARD #40 -7793 P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: "Small Steps Towards Healthy Living /Pasos Pequenos Para Una System /Agency: Santa Ana Public Library CONSOLIDATED APPLICATION NOTIFICATION OF GRANT AWARD, LSTA (continued) 8. The control of funds and title to property derived therefrom shall be in a subgrantee agency for the uses and purposes provided; a subgrantee agency will administer such property and funds and shall apply funds only for the purposes for which they were granted. 9. The expenditure under this program will not be used to supplant subgrantee effort. 10. This aggreement is entered into under provisions of the Library Services and Technology Act, Public Law 104 -208 on September 30, 1996; and Congressional Record - House, H11644- H11728 on September 28, 1996, H12266- H12267 on October 3, 1996; and 45 CFR 1183, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, October 1, 1994. 11. Performance of the provisions of this agreement is subject to the conditions and availability of funds as awarded by the State Librarian under said Act. 12. The terms of this agreement shall be from upon execution through the end of grant period. But shall be subject to termination by either party by giving written notice to the other party at least thirty (30) days prior to the effective date of termination. In the event this agreement is so terminated, the subgrantee shall deliver to the State Librarian copies of all reports and /or materials prepared up to the date of termination, and the State Librarian shall determine, and pay the subgrantee for the necessary and appropriate expenditures and obligations to the date of termination which have not been covered by prior installments heretofore paid to the subgrantee. If funding has been advanced to the subgrantee, any unobligated balances, as determined by the State Librarian, shall be returned to the State Library within 60 days of the notice of termination. 13. The State Librarian is empowered to review, audit, and inspect the project for compliance with this agreement. LIMITATION OF EXPENDITURE Expenditure for all projects must conform to the approved budget, as amended, and with applicable Federal and State laws and regulations. California State Library LSTA GA Page 3 Budget Office LSTA GRANT AWARD #40 -7793 P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: "Small Steps Towards Healthy Living /Pasos Pequenos Para Una System /Agency: Santa Ana Public Library CONSOLIDATED APPLICATION NOTIFICATION OF GRANT AWARD, LSTA, continued Any of the sums listed as approved and /or amended appearing under the categories in the approved budget may be adjusted by the authorized project personnel of the subgrantee to increase any allotment not more than 10% with the understanding that there will be corresponding decreases in other allotments so that the total amount paid by the California State Library to the subgrantee under this agreement shall not exceed $28,000 and shall be expended /encumbered in the designated grant period. REPORTS AND CLAIMS It is the responsibility of the recipient of these instructions to see that the proper individual to supply the required reports and claims receives the instructions and makes the required reports and claims to the California State Library. I. The subgrantee shall be responsible for the submission of two Narrative Reports, unless otherwise noted in the State Librarian's award letter, on the progress and activities of the project, in triplicate, to the State Library within 30 days following the end of the designated quarter. II. The subgrantee shall submit quarterly Financial Reports, in triplicate to the State Library. These reports are to reflect the expenditures made by the subgrantee under the agreement. The financial reports are to be submitted within 30 days following the end of the quarter. III. To obtain payment hereunder the subgrantee shall submit authorized claims provided by the State Library for that purpose, on each of the following mentioned dates for payment, and the California State Library agrees to reimburse the Library as soon thereafter as State fiscal procedures will permit. IV. The final 10% of the grant is payable only if the grant recipient fulfills all project reporting requirements and returns all unspent grant funds by the time specified in the award. Failure to provide timely reports is a serious breach of a grant recipient's administrative duty under the award, which may result in federal audit exceptions against the state and the loss of LSTA funds. The State Librarian may extend the final deadline for good cause. Request for extension beyond the final deadline of the grant period must be received at least 30 days prior to that deadline at the State Librarian's office. Payment will be provided to cover the expenditures incurred by the subgrantee for the project in the following manner: $25,200 upon execution of the agreement and submission of claim by fiscal agent $2,800 on the submission of all reporting and return of funds If the amount of payment made by the California State Library shall exceed the actual expenses during the term of the agreement, as reflected in the financial reports to be filed by the subgrantee the subgrantee shall refund to the California State Library the amount of such excess payment. 20A -5 California State Library LSTA GA Page 4 Fiscal Office LSTA GRANT AWARD #40 -7793 P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: "Small Steps Towards Healthy Living /Pasos Pequenos Para Una System /Agency: Santa Ana Public Library NONDISCRIMINATION CLAUSE ADDENDUM 1. During the performance of this grant award, the recipient, subgrantee and its contractors shall not deny the grant award's benefits to any person on the basis of religion, color, ethnic group identification, sex, age, physical or mental disability, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, mental disability, medical condition, marital status, age (over 40) or sex. Subgrantee shall insure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. 2. Subgrantee shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, Section 1290 et. seq.), the regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Sections 7285.0 et. seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code, Sections 11135- 11139.5), and the regulations or standards adopted by the awarding state agency to implement such article. 3. Subgrantee or recipient shall permit access by representatives of the Department of Fair Employment and Housing and the awarding state agency upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or Agency shall require to ascertain compliance with this clause. 4. Recipient, subgrantee and its contractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. 5. Subgrantee shall include the nondiscrimination and compliance provisions of this clause in all contracts to perform work under the grant award California State Library LSTA GA Page 5 Fiscal Office LSTA GRANT AWARD #40 -7793 P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: "Small Steps Towards Healthy Living /Pasos Pequenos Para Una System /Agency: Santa Ana Public Library CERTIFICATION REGARDING LOBBYING FOR GRANTS AND COOPERATIVE AGREEMENTS This certification is a prerequisite for making or entering into a grant or cooperative agreement over $100,000. Upon the acceptance of the grant award the subgrantee as required by Section 1352, Title 31 of the U.S. Code certifies to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the subgrantee, to any person for influencing or attempting to influence 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. 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 grant or cooperative agreement, the subgrantee shall complete and submit Standard Form - LLL, 'Disclosure Form to Report Lobbying,' in accordance with its instructions. 3. The subgrantee shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all subrecipients shall certify and disclose accordingly. 20A -7 LSTA Control #: C -62 LSTA GRANT AWARD DOCUMENTATION Budget Chapter 712, Item 6120 - 211 -0890 LSTA Award #: 40 -7793 Approval Date: 02/16/11 Project Title: "Small Steps Towards Healthy Living /Pasos Pequenos Para Una Subgrantee: Santa Ana Public Library Funding Start Date: ** upon execution ** Approved Funds: $28,000 Term: upon execution - end of grant period Payments: $25,200 upon execution of agreement Schedule No. $2,800 on completion of all reporting Schedule No. requirements and return of abatements Appropriation Encumbered (designate where applicable) For: FY 10/11 WP 09 Fund Federal Trust PCA #: 92980 Code: 702 Vendor Code: M719 Catalog number from Federal Catalog of Domestic Assistance #: 45.310 IMLS #: LS- 00 -10- 0005 -10 BUDGET CATEGORY SALARIES & BENEFITS MATERIALS EQUIPMENT OPERATING EXPENSES INDIRECT COSTS TOTAL APPROVED BUDGET $22,500 $436 $5,064 $28,000 REVISED REVISED ATTENTION ATTACHED PLEASE FIND THE CLAIM FOR PAYMENT AND THE LSTA GA CERTIFICATION. THESE MUST BE COMPLETED, SIGNED (WITH ORIGINAL SIGNATURES), AND RETURNED TO. CALIFORNIA STATE LIBRARY FISCAL OFFICE - LSTA P.O. BOX 942837 SACRAMENTO, CA 94237 -0001 THESE MUST BE DONE AS SOON AS POSSIBLE TO AVOID DELAY IN RECEIPT OF FUNDS. YOU SHOULD RETAIN COPIES OF THE CLAIM AND CERTIFICATION FOR YOUR FILES. THESE ARE THE ONLY DOCUMENTS THAT NEED TO BE RETURNED AT THIS TIME. THANK YOU. Attachments T' A , CALIFORNIA STATE LIBRARY Library Services and Technology Act FINANCIAL CLAIM 1ST PAYMENT FY: 10/11 WP: 09 VENDOR CODE: M719 I SCHEDULE NO: Date: Claim of: Santa Ana Public Library n �� �� Address: NV�ll��'1 QA_'4 �`C"�a?k; t)C ►"-Y►'tCt (1241c C "j���� For: Santa Ana Public Library (Name of System or Agency) Project Title: "Small Steps Towards Healthy Living /Pasos Pequenos Para Una Vida Amount Claimed: $25,200 Grant Award I.D. Number: 40 -7793 For Period From: upon execution to end of grant period Type of Payment: PROGRESS FINAL IN FULL Payable Upon Execution of Agreement 02/16/11 CERTIFICATION I hereby certify under penalty of perjury: that I am the duly authorized officer of the claimant herein; that this claim is in all respects true, correct and in accordance with law and the terms of the contract; and that payment has not previously been received for the amount claimed herein. Y (Signature of the uthorized officer of th'e` Fiscal Agency) (Title) -------------------------------------------------------------------------------------- - - - - -- 12� -a ---- -- State of California State Library Fiscal Office by date MAIL ONE ORIGINAL SIGNATURE TO: California State Library Fiscal Office - LSTA P.O. Box 942837 Sacramento, CA 94237 -0001 LSTA GA Certification California State Library LSTA GRANT AWARD #40 -7793 Fiscal Office P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: "Small Steps Towards Healthy Living /Pasos Pequenos Para Una Vida Sana" System /Agency: Santa Ana Public Library PLEASE COMPLETE AND RETURN THIS PAGE CERTIFICATION I. 1 affirm that the subgrantee named below is the legally designated fiscal agent for this program and is authorized to receive and expend funds for the conduct of this program. I affirm that all information provided to the California State Library for review in association with this award is correct and complete to the best of my knowledge; that as the authorized representative of the subgrantee, I have the legal authority to commit my organization to the conditions of this award. III. 1 affirm that any or all other subgrantees participating in the program have agreed to the terms of the application /grant award, and have entered into an agreement(s) concerning the final disposition of equipment, facilities, and materials purchased for this program from the funds awarded for the activities and services described in the attached, as approved and /or as amended in the application. SIGNED �'��� DATE Authorized r presentative Type or print name and title, of authorized representative -- o,- Legal name of local subgrantee Project name as listed on the application 0911 (1' \,J i Q) Q Q -,OA r Y CA?-C-- lscy 4vu" Street address of named subgrantee City County Zip Code Telephone of authorized rep. r `ear — fAmcff C -7)4)(cLf 7- C�LG Coordinator /Director of program if different Telephone AYU, Cl ::;?v WHO SHOULD RECEIVE NOTIFICATION OF APPROVAL OR DENIAL Of L TA AWARD: 7 ` ,J 1,U tk-W-Ai f� -SL L-1 1, Lf p I- 0 -,-5 -& ,t WWSC& - ICi WHO SHOULD RECEIVE INSTRUCTIONS FOR PREPARING REQUIRED REPORTS: C1� (Provide name, address and telephone number. Use back if needed.) 20A -11 LSTA Award #40 -7793 Small Steps Towards Healthy Living ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: L ura Sheedy Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager APPROVED AS TO CONTENT: GERARDO MOUET Executive Director — Parks, Recreation & Community Services 41yils V" February 18, 2011 Heather Folmar, Library Operations Manager Santa Ana Public Library 26 Civic Center Plaza Santa Ana, CA 92701 -4010 Dear Ms. Folmar: We are pleased to approve the grant application for the "Small Steps Towards Healthy Living/Pasos Pequenos Para Una Vida Sana" Video Project project for a total of $28,000 in federal Library Services and Technology Act (LSTA) funds. Mentoring and training a core of volunteer Youth Health Ambassadors to create bilingual health related videos for the community is an innovative and commendable undertaking. We look forward to hearing what you learn from this project and how local youth and your community respond. In order for your project to be successful, it will be important to continually assess project progress and realign the very ambitious outputs and outcomes, if need be, as the project unfolds. In order to support you, an archived version of a webinar on "Managing your LSTA Grant" presented by the State Library is available to view at http://infopeople.org/trainingZwebcasts/webcast data/497/index.html. The Library Development Services Staff is ready to assist you in making your project a success. Please be aware state processing of grant payments can require 6 -8 weeks before you receive your check. Best wishes for a successful project. Kindest Regards, 4Q� 4. 444-.- Stacey A. Aldrich State Librarian of California Enclosures cc: Colette Moody Suzanne Flint Cheryl A. Eberly Library — Courts Building P-0-B )y�94'18 73 Sacramento, CA 94237 -0001 THE BASICS — YOUR LSTA GRANT AWARD The following provides all of the basic information about your grant and managing your grant. Award #: 40 -7793 IMLS #: LS- 00 -10- 0005 -10 Library: Santa Ana Public Library Project Title: "Small Steps Towards Healthy Living /Pasos Pequenos Para Una Vida Sana" I Video Project Award Amount: $28,000 2010/11 LSTA APPROVED BUDGET Salaries and Benefits 22,500 Materials 436 Equipment (Items over $5,000) 0 Operating Expenses 5,064 Project Total 28,000 Indirect Cost (UP TO 10 %) 0 Grant TotalJ $28,000 Start Date: February 16, 2011 End Date: I August 31, 2011 On August 31, 2011, this project will be officially closed and no new expenditures may be generated, nor may any additional funded project activities occur. This project is allowed 45 days to liquidate encumbrances that were incurred prior to August 31. All unexpended and encumbered funds must be returned by October 15, 2011. REPORTING Reporting on financial and program activities is required as follows: Financial: quarterly within 30 days of each quarter. The final liquidation report, if required, is due and must be submitted by October 15, 2011. Program: a final narrative report is due within 30 days after the close of the project, by September 30, 2011. All required reporting materials will be located on the California State Library's website at http://www.librM.ca.gov/uants/ista/manage.html. The forms, along with instructions, will be on the website under the heading "Competitive and Statewide Grants 2010/11." This letter and the enclosed list of LSTA procedural requirements amend the Consolidated Application/Grant Award Certification document and must remain a part of all your existing copies. Failure to provide timely reports is a serious breach of a grant recipient's administrative duty under the grant program, which may result in federal audit exceptions against the state and the loss of LSTA funds. PAYMENTS Please note this clarification regarding payments. If your full grant amount is $20,000 or more, ten percent (10 %) of the grant award is withheld until the end of the project period. It is payable only if the grant recipient fulfills all project reporting requirements and expends all funds, or returns all unspent grant funds, by the time specified in the grant program. CONTACT We want your project to be successful. The following staff person will be your contact for your project. Please work with this consultant in implementing your project. Grant Monitor: Suzanne Flint Phone Number: (916) 651 -9796 Email Address: sflint libra .ca. ov Doc. #! 53 / 7 20A-1 4 Fi1e #C- 62/WP09 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED AGREEMENT WITH THE CALIFORNIA ❑ As Recommended STATE LIBRARY AND APPROPRIATION ❑ As Amended ADJUSTMENT FOR THE SKILLS TO WORK El Ordinance on Reading El on 2 ° n d Reading PROGRAM ❑ Implementing Resolution ❑ Set Public Hearing For ;t CITY MANAGER RECOMMENDED ACTION CONTINUED TO FILE NUMBER 1. Authorize the City Manager and Clerk of the Council to execute an agreement with the California State Library in the amount of $5,000 for a Library Services and Technology Act grant for the Skills to Work: Developing your Employment Potential program. 2. Approve an appropriation adjustment recognizing $5,000 from the California State Library in the revenue account (no. 15411002 52001) and appropriating same to expenditure account (no. 15411193 various). DISCUSSION The Library Services and Technology Act (LSTA) is a federal grant program managed by the Institute of Museum and Library Services and administered in California by the State Librarian. Grants are intended to expand service to diverse ethnic and socioeconomic groups, underserved urban populations, and those with limited functional literacy. The State Library has awarded a $5,000 LSTA grant to the Santa Ana Public Library in support of its program, Skills to Work: Developing your Employment Potential. Skills to Work will provide job searching capability for the adult Hispanic community who are struggling to cope with today's technology driven employment requirements. The program will provide an ongoing series of six classes in resume creation, online job searching, and e-mail communication at the Jerome Recreation Center. Adult volunteers will be recruited and trained to conduct the classes. Funds will be software and supplies required to support the curriculum, and to assist with classes. The Library will use in -kind personnel costs matching funds. 41UN used to purchase equipment, pay part-time bilingual staff to to provide the preferred 50% LSTA Agreement and Appropriation Adjustment for Skills to work Program March 21, 2011 Page 2 FISCAL IMPACT The appropriation adjustment will recognize $5,000 in grant funding from the California State Library in revenue account (no. 15411002 52001), and appropriate same to expenditure account (no. 15411193 various). APPROVED AS TO FUNDS AND ACCOUNT: erardo Mouet, Francisco Gutierrez, (YW Executive Director Executive Director Parks, Recreation 6nd Community Finance and Management Services Agency Services Agency 41 = LSTA GA Page 1 California State Library Fiscal Office LSTA GRANT AWARD #40 -7747 P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: Skills -to -Work: Developing Your Employment Potential System /Agency: Santa Ana Public Library CONSOLIDATED APPLICATION NOTIFICATION OF GRANT AWARD Library Services and Technology Act I. The recipient designated above hereby certifies to the California State Library, for a grant of funds in the amount of $5,000. This block grant will provide library services as set forth in the LSTA Service Project Application as approved and /or as amended by the California State Librarian. TERMS AND CONDITIONS The recipient agency and its named or designated fiscal agent hereby assures the California State Library that: 1. It is mutually understood between the parties that this grant award may have been written before ascertaining the availability of congressional appropriation of funds, for the mutual benefit of both parties in order to avoid program and fiscal delays which would occur if the grant award were executed after that determination was made. 2. This grant award is valid and enforceable only if sufficient funds are made available to the State by the United States government for the Fiscal Year 10/11 for the purposes of this program. In addition, this grant award is subject to any additional restrictions, limitations, or conditions enacted by the Congress or any statute enacted by the Congress which may affect the provisions, terms or funding of this grant award in any.manner. 3. It is mutually agreed that if the Congress does not appropriate sufficient funds for the program, this grant award shall be amended to reflect any reduction in funds. 4. The California State Library has the option to amend the grant award to reflect any reduction of funds. 5. Upon the grant award approval by the State Librarian, one (1) completed set of this CONSOLIDATED APPLICATION NOTIFICATION OF GRANT AWARD and RECIPIENT CERTIFICATION will be sent to the subgrantee. Such copy shall be the officially approved agreement for the conduct of the approved project. 6. " Subgrantee" means the government or other legal entity to which a subgrant is awarded and which is accountable to the grantee for the use of the funds provided. 7. The subgrantee will make reports to the State Librarian in such form and containing such information as may be required to enable the California State Library to perform its duties. The subgrantee will keep such records and afford such access as the California State Librarian, California State Library may find necessary to assure the correctness and verification of such reports. all ] California State Library Fiscal Office P.O. Box 942837 Sacramento, CA 94237 -0001 LSTA GA Page 2 LSTA GRANT AWARD #40 -7747 Project Title: Skills -to -Work: Developing Your Employment Potential System /Agency: Santa Ana Public Library CONSOLIDATED APPLICATION NOTIFICATION OF GRANT AWARD, LSTA (continued) 8. The control of funds and title to property derived therefrom shall be in a subgrantee agency for the uses and purposes provided; a subgrantee agency will administer such property and funds and shall apply funds only for the purposes for which they were granted. 9. The expenditure under this program will not be used to supplant subgrantee effort. 10. This aggreement is entered into under provisions of the Library Services and Technology Act, Public Law 104 -208 on September 30, 1996; and Congressional Record - House, H11644- H11728 on September 28, 1996, H12266- H12267 on October 3, 1996; and 45 CFR 1183, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, October 1, 1994. 11. Performance of the provisions of this agreement is subject to the conditions and availability of funds as awarded by the State Librarian under said Act. 12. The terms of this agreement shall be from upon execution through the end of grant period. But shall be subject to termination by either party by giving written notice to the other party at least thirty (30) days prior to the effective date of termination. In the event this agreement is so terminated, the subgrantee shall deliver to the State Librarian copies of all reports and /or materials prepared up to the date of termination, and the State Librarian shall determine, and pay the subgrantee for the necessary and appropriate expenditures and obligations to the date of termination which have not been covered by prior installments heretofore paid to the subgrantee. If funding has been advanced to the subgrantee, any unobligated balances, as determined by the State Librarian, shall be returned to the State Library within 60 days of the notice of termination. 13. The State Librarian is empowered to review, audit, and inspect the project for compliance with this agreement. LIMITATION OF EXPENDITURE Expenditure for all projects must conform to the approved budget, as amended, and with applicable Federal and State laws and regulations. 41 = California State Library LSTA GA Page 3 Budget Office LSTA GRANT AWARD #40 -7747 P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: Skills -to -Work: Developing Your Employment Potential System /Agency: Santa Ana Public Library CONSOLIDATED APPLICATION NOTIFICATION OF GRANT AWARD, LSTA, continued Any of the sums listed as approved and /or amended appearing under the categories in the approved budget may be adjusted by the authorized project personnel of the subgrantee to increase any allotment not more than 10% with the understanding that there will be corresponding decreases in the other allotments so that the total amount paid by the California State Library to the subgrantee under this agreement shall not exceed $5,000 and shall be expended /encumbered in the designated grant period. REPORTS AND CLAIMS It is the responsibility of the recipient of these instructions to see that the proper individual to supply the required reports and claims receives the instructions and makes the required reports and claims to the California State Library. I. The subgrantee shall be responsible for the submission of two Narrative Reports, unless otherwise noted in the State Librarian's award letter, on the progress and activities of the project, in triplicate, to the State Library within 30 days following the end of the designated quarter. If. The subgrantee shall submit quarterly Financial Reports, in triplicate to the State Library. These reports are to reflect the expenditures made by the subgrantee under the agreement. The financial reports are to be submitted within 30 days following the end of the quarter. III. To obtain payment hereunder the subgrantee shall submit authorized claims provided by the State Library for that purpose, on each of the following mentioned dates for payment, and the California State Library agrees to reimburse the Library as soon thereafter as State fiscal procedures will permit. IV. The final 10% of the grant award is payable only if the grant recipient fulfills all project reporting requirements and returns all unspent grant funds by the time specified in the award. Failure to provide timely reports is a serious breach of a grant recipient's administrative duty under the award, which may result in federal audit exceptions against the state and the loss of LSTA funds. The State Librarian may extend the final deadline for good cause. Request for extension beyond the final deadline of the grant period must be received at least 30 days prior to that deadline at the State Librarian's office. Payment will be provided to cover the expenditures incurred by the subgrantee for the project in the following manner: $5,000 upon execution of the agreement and submission of claim by fiscal agent If the amount of payment made by the California State Library shall exceed the actual expenses during the term of this agreement, as reflected in the financial reports to be filed by the subgrantee, the subgrantee shall refund to the California State Library the amount of such excess payment. T1 California State Library LSTA GA Page 4 Fiscal Office LSTA GRANT AWARD #40 -7747 P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: Skills -to -Work: Developing Your Employment Potential System /Agency: Santa Ana Public Library NONDISCRIMINATION CLAUSE ADDENDUM 1. During the performance of this grant award, the recipient, subgrantee and its contractors shall not deny the grant award's benefits to any person on the basis of religion, color, ethnic group identification, sex, age, physical or mental disability, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, mental disability, medical condition, marital status, age (over 40) or sex. Subgrantee shall insure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. 2. Subgrantee shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, Section 1290 et. seq.), the regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Sections 7285.0 et. seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code, Sections 11135- 11139.5), and the regulations or standards adopted by the awarding state agency to implement such article. 3. Subgrantee or recipient shall permit access by representatives of the Department of Fair Employment and Housing and the awarding state agency upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or Agency shall require to ascertain compliance with this clause. 4. Recipient, subgrantee and its contractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. 5. Subgrantee shall include the nondiscrimination and compliance provisions of this clause in all contracts to perform work under the grant award. 1' •, California State Library LSTA GA Page 5 Fiscal Office LSTA GRANT AWARD #40 -7747 P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: Skills -to -Work: Developing Your Employment Potential System /Agency: Santa Ana Public Library CERTIFICATION REGARDING LOBBYING FOR GRANTS AND COOPERATIVE AGREEMENTS This certification is a prerequisite for making or entering into a grant or cooperative agreement over $100,000. Upon the acceptance of the grant award the subgrantee as required by Section 1352, Title 31 of the U.S. Code certifies to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the subgrantee, to any person for influencing or attempting to influence 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. 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 grant or cooperative agreement, the subgrantee shall complete and submit Standard Form - LLL, 'Disclosure Form to Report Lobbying,' in accordance with its instructions. 3. The subgrantee shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all subrecipients shall certify and disclose accordingly. 41UMA LSTA Control # E -23 LSTA GRANT AWARD DOCUMENTATION Budget Chapter 712 Item 6120- 211 -0890 LSTA Award #: 40 -7747 Approval Date: 02/07/11 Project Title: Skills -to -Work: Developing Your Employment Potential Subgrantee: Santa Ana Public Library Funding Start Date: ** upon execution ** Approved Funds: $5,000 Term: upon execution - end of grant period Payments: $5,000 upon execution of agreement Schedule No. LUMP -SUM PAYMENT Appropriation Encumbered (designate where applicable) For: FY 10/11 WP 09 Fund Federal Trust PCA #: 92980 Code: 702 Vendor Code: M719 Catalog number from Federal Catalog of Domestic Assistance #: 45.310 IMLS #: LS- 00 -10- 0005 -10 BUDGET CATEGORY SALARIES & BENEFITS MATERIALS EQUIPMENT OPERATING EXPENSES INDIRECT COSTS TOTAL APPROVED BUDGET --------------- -- $690 $359 $3,951 --------------- -- $5,000 all : :� REVISED REVISED ATTENTION ATTACHED PLEASE FIND THE CLAIM FOR PAYMENT AND THE LSTA GA CERTIFICATION. THESE MUST BE COMPLETED, SIGNED (WITH ORIGINAL SIGNATURES), AND RETURNED TO: CALIFORNIA STATE LIBRARY FISCAL OFFICE - LSTA P.O. BOX 942837 SACRAMENTO, CA 94237 -0001 THESE MUST BE DONE AS SOON AS POSSIBLE TO AVOID DELAY IN RECEIPT OF FUNDS. YOU SHOULD RETAIN COPIES OF THE CLAIM AND CERTIFICATION FOR YOUR FILES. THESE ARE THE ONLY DOCUMENTS THAT NEED TO BE RETURNED AT THIS TIME. THANK YOU. Attachments CALIFORNIA STATE LIBRARY Library Services and Technology Act FINANCIAL CLAIM FY: 10/11 WP: 09 VENDOR CODE: M719 SCHEDULE NO: Date: Claim of: Santa Ana Public Library Address: cQ(-P C> (� C jA��Y- P C Z�=� , SCUA x44+ ,,,ICA For: Santa Ana Public Library (Name of System or Agency) Project Title: Skills -to -Work: Developing Your Employment Potential Amount Claimed: $5,000 Contract or Grant Award I.D. Number: 40 -7747 For Period From: upon execution to end of grant period Type of Payment: PROGRESS FINAL IN FULL Payable Upon Execution of Agreement 02/07/11 CERTIFICATION I hereby certify under penalty of perjury: that I am the duly authorized officer of the claimant herein; that this claim is in all respects true, correct and in accordance with law and the terms of the contract; and that payment has not previously been received for the amount claimed herein. b Y (Signature of the Othorized officer of the Fiscal Agency) (Title) 42,0,-��i- State of California State Library Fiscal Office by date MAIL ONE ORIGINAL SIGNATURE TO: California State Library Fiscal Office - LSTA P.O. Box 942837 Sacramento, CA 94237 -0001 q1 1� LSTA GA Certification California State Library LSTA GRANT AWARD #40 -7747 Fiscal Office P.O. Box 942837 Sacramento, CA 94237 -0001 Project Title: Skills -to -Work: Developing Your Employment Potential System /Agency: Santa Ana Public Library PLEASE COMPLETE AND RETURN THIS PAGE CERTIFICATION I. 1 affirm that the subgrantee named below is the legally designated fiscal agent for this program and is authorized to receive and expend funds for the conduct of this program. I affirm that all information provided to the California State Library for review in association with this award is correct and complete to the best of my knowledge; that as the authorized representative of the subgrantee, I have the legal authority to commit my organization to the conditions of this award. III. I affirm that any or all other subgrantees participating in the program have agreed to the terms of the application /grant award, and have entered into an agreement(s) concerning. the final disposition of equipment, facilities, and materials purchased for this program from the funds awarded for the activities and services described in the attached, as approved and /or as amended in the application. SIGNED DATE Authorized r resentative Type or print name and title, of authorized representative Legal name of local subgrantee Project name as listed on the application Street address of named subgrantee City County Zip Code Telephone of authorized rep. Coordinator /Director of program if different Telephone a Q WHO SHOULD RECEIVE NOTIFICATION OF APPROVAL OR'DENIAL Of LSTA WARD. WHO SHOULD RECEIVE INSTRUCTIONS FOR PREPARING REQUIRED REPORTS: (Provide name, address and telephone number. Use back if needed.) 20B -11 LSTA Award #40 -7747 Skills -to -Work: Developing your Employment Potential ATTEST: MARIA D. I UIZAR Clerk of the Council APPROVED AS TO FORM: Udu'ra Sheedy Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager APPROVED AS TO CONTENT: GERARDO MOUET Executive Director — Parks, Recreation & Community Services 41 = 1 .. February 11, 2011 Heather Folmar, Library Operations Manager Santa Ana Public Library 26 Civic Center Plaza Santa Ana, CA 92701 -4010 Dear Ms. Folmar: We are pleased to approve the grant application for the Skills -to -Work: Developing your Employment Potential project for a total of $5,000 in federal Library Services and Technology Act (LSTA) funds. In order to support you, an archived version of a webinar on "Managing your LSTA Grant' presented by the State Library is available to view at http:// www. infopepple .org/trainingJwebcasts /webcast data/497/index.html. The Library Development Services Staff is ready to assist you in making your project a success. Please be aware state processing of grant payments can require 6 -8 weeks before you receive your check. Best wishes for a successful project. Kindest Regards, Stacey A. Aldrich State Librarian of California Enclosures cc: Colette Moody Stacey A. Aldrich Patty Lopez Gerardo Mouet Library — Courts Building P.O. Bar 942837 Sacramento, CA 94237 -0001 411:5141 THE BASICS — YOUR LSTA GRANT AWARD The following provides all of the basic information about your grant and managing your grant. Award #: 40 -7747 IMLS #: LS- 00 -10- 0005 -10 Library: Santa Ana Public Library Project Title: Skills -to -Work: Developing your Employment Potential Award Amount: $5,000 2010/11 LSTA APPROVED BUDGET Salaries and Benefits 690 Materials 359 Equipment (Items over $5,000) 0 Operating Expenses 3,951 Project Total 5,000 Indirect Cost (UP TO 10 %) 0 Grant Total $5,000 Start Date: February 7, 2011 End Date: I August 31, 2011 On August 31, 2011, this project will be officially closed and no new expenditures may be generated, nor may any additional funded project activities occur. This project is allowed 45 days to liquidate encumbrances that were incurred prior to August 31 and all unexpended and encumbered funds must be returned by October 14, 2011. REPORTING Reporting on financial and program activities is required as follows: Financial: quarterly within 30 days of each quarter. The final liquidation report, if required, is due and must be submitted by October 14, 2011. Program: a final narrative report is due within 30 days after the close of the project, by September 30, 2011. All required reporting materials will be located on the California State Library's website at http: / /www.libraa.ca. ov /grants /Ista/mana eg html. The forms, along with instructions, are on the website under the heading "Eureka! Leadership Grant 2010/11." This letter and the enclosed list of LSTA procedural requirements amend the Consolidated Application/Grant Award Certification document and must remain a part of all your existing copies. Failure to provide timely reports is a serious breach of a grant recipient's administrative duty under the grant program, which may result in federal audit exceptions against the state and the loss of LSTA funds. PAYMENTS Please note this clarification regarding payments. If your full grant amount is $20,000 or more, ten percent (10 %) of the grant award is withheld until the end of the project period. It is payable only if the grant recipient fulfills all project reporting requirements and expends all funds, or returns all unspent grant funds, by the time specified in the grant program. CONTACT We want your project to be successful. The following staff person will be your contact for your project. Please work with this consultant in implementing your project. Grant Monitor: Stacey A. Aldrich Phone Number: 916) 654 -0188 Email Address: saldrich@library.ca.gov Doc. #15300 Fi1e #E- 23/WP09 20B -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: CONTRACT AWARD TO EN POINTE TECHNOLOGIES SALES INC. FOR VMWARE SUPPORT CONTRACT (SPEC. NO. 11 -006) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2 r Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to En Pointe Technologies Sales, Inc. for the maintenance and support of VMware software for a one -year period in an amount not to exceed $38,100. DISCUSSION The City of Santa Ana's Information Services Division - Operations (ISD -Ops) supports the computing centers in both City Hall and the Santa Ana Police Department (SAPD). Both computing centers house servers which host enterprise computer systems, enterprise computer services, and SAPD computer systems which are critical to the operations of the City. As part of the City's equipment replacement plan, ISD -Ops is replacing physical computer hosting servers with new virtualized hosting technology. The new technology enables the ability of one physical server to operate as multiple "virtual" servers by means of specialized software to simulate physical computer devices. Thus far, the use of virtualization technology has reduced hardware acquisition, power consumption costs, and provided a more flexible and reliable computer hosting environment. The City's ISD -Ops has utilized VMware virtualization software since 2008 which has proven to be reliable and cost effective. In order to maintain the 24x7 service levels required by the computer systems and services centers, staff recommends contract renewals for VMware on -going software maintenance and support. In addition, staff recommends the conversion of all VMware support contract term end dates to April 5, 2012 which will further reduce the administrative cost of tracking individual contracts and provide volume discounts for future support renewals. 22A -1 Contract Award for VMware Support Contract March 21, 2011 Page 2 The notice inviting bids was advertised on February 23, 2011 and bids were solicited. A summary of the bid invitations and bids received is as follows: 2 Invitations For Bid emailed 2 Bids received Bids were received and opened March 3, 2011 (Exhibit 1). The bid from En Pointe Technologies Sales Inc. is responsive to the specifications and meets the City's requirements. FISCAL IMPACT Funds are available in the Finance Information Systems Strategic Plan Maintenance and Support account (no. 10910147 - 62300). APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Mgt. Services Agency EG 22A -2 Contract Award for VMware Support Contract March 21, 2011 Page 3 ABSTRACT OF BIDS CONTRACT AWARD FOR VMWARE SUPPORT CONTRACT (11 -006) Vendor En Pointe GovPlace Technologies Sales, Inc. Location Gardena, CA Irvine, CA Total $38,088.47 $40,327.03 Exhibit 1 22A -3 22A -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: CONTRACT AMENDMENTS FOR TRAFFIC SIGNAL SYSTEMS UPGRADE EQUIPMENT (SPEC. NO. 10 -019) 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 1. Amend the contract with Safetran Traffic Systems, Inc. for traffic signal cabinet assemblies in an amount not to exceed $190,000. 2. Amend the contract with Econolite Control Products, Inc. for controllers and software in an amount not to exceed $480,000. 3. Amend the contract with GDI Communications LLC for internal and rack mount modems in an amount not to exceed $108,000. DISCUSSION The City's traffic signal system consists of a total of 283 traffic signals of which 245 are monitored and controlled by the Multisonics VMS 330 central traffic signal system which has been in place since the 1970's. The remaining 38 traffic signals are monitored and controlled by a recently installed Management Information System for Traffic (MIST). The City is in the process of converting all traffic signals to the MIST system and due to the size and complexity of the project, the implementation is divided into eight phases based on geographical areas. On June 21, 2010, the City Council awarded three contracts to vendors which provided the necessary equipment to implement the first four phases of the project. A total of 120 traffic signal controllers and 30 cabinets have been upgraded thus far. The vendors have offered to extend the same terms and conditions for the purchase of additional equipment needed to implement the remaining four phases of the {project. Staff recommends the purchase of the equipment to complete the project. 22B -1 Contract Award for Traffic Signal Systems Upgrade Equipment March 21, 2011 Page 2 FISCAL IMPACT Funds are available in the Measure M Fund account (accounting unit 03217660- 66220), projects 106708, 106709, 106710 and 106711. Raul 6odinez II Executive Director Public Works Agency IMi APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: CONTRACT AWARD FOR BRISTOL /17TH INTERSECTION WIDENING (PROJECT NO.116744) 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 Award a contract to B & T Works, Inc., the lowest responsible bidder, in accordance with unit bid prices in the estimated amount of $917,673.45 for construction of the Bristol /17th Streets intersection widening. 2. Approve a funding analysis with a total estimated construction cost of $1,422,300. DISCUSSION The Bristol and 17th Streets intersection widening project conforms to the previously approved Bristol Street Corridor Specific Plan. The intersection is experiencing high traffic volume and is in need of widening in order to improve the level of service (Exhibit 1). Improvements proposed include the addition of southbound right- turn -only lane and northbound through -lane traffic, traffic signal modification, and resurfacing of the intersection. Once completed, these improvements will improve safety and traffic flow of the intersection. The Notice Inviting Bids was advertised on February 4 and 7, 2011, and bids were opened on February 23, 2011. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: 0 Contractors requesting bidding documents: 11 Bids received: 6 Bids received from Santa Ana Contractors: 0 23A -1 Contract Award For Bristol /17th Intersection Widening March 21, 2011 Page 2 NAME OF RESPONSIVE BIDDER CITY BID AMOUNT 1. B & T Works, Inc. Wildomar $ 917,673.45 2. Hillcrest Contracting, Inc. Corona $ 990,867.30 3. Excel Paving Company Long Beach $1,021,694.85 4. Elite Bobcat Service, Inc. Corona $1,087,278.80 5. All American Asphalt Corona $1,100,000.00 6. R.J. Noble Company Orange $1,294,685.40 A total of six bids were received and all were responsive. The lowest bid was submitted by B & T Works, Inc., for $917,673.45 which is below the Engineer's estimate of $1,238,938. ENVIRONMENTAL IMPACT An Environmental Impact Statement (EIS) for the Bristol Corridor from Warner to Memory Lane was approved by the City Council in 1990. In accordance with the California Environmental Quality Act (CEQA), a CEQA Addendum and Notice of Determination (State Clearinghouse No. 87071509) were filed on December 22, 2010. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $1,422,300 for the project (Exhibit 2). Funds are available in the Intersection Improvement Program fund (accounting unit 11674402028 - 03217660), the Growth Management Area funds (accounting units 11674403028- 05917661 and 11674404028- 03217660). APPROVED AS TO FUNDS AND ACCOUNTS: Raul dinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG /ET Exhibit 1: Project Location Map 2: Funding Analysis FUNDING ANALYSIS PROJECT NO. 116744 BRISTOL / 17TH INTERSECTION WIDENING Construction Contract $917,674 Contract Administration $45,855 Inspection and Testing $68,800 Survey Staking $22,902 Contingencies $367,069 TOTAL ESTIMATED CONSTRUCTION COSTS $1,422,300 Exhibit 2 23A -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: CONTRACT AWARD FOR SANTA CLARA AVENUE SEWER AND WATER MAIN IMPROVEMENTS (PROJECT NOS. 106600 & 116409) C /tom CIT MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 0141=671451 ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 s` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Award a contract to Garcia Juarez Construction, Inc., the lowest responsible bidder, in accordance with unit bid prices in the estimated amount of $1,196,325 for construction of Santa Clara Avenue sewer and water main improvements. 2. Approve a funding analysis with a total estimated construction cost of $1,495,400. 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 services. Once completed, water main breaks and leaks associated with the older and deteriorated water mains will be eliminated. In addition, sewer capacity will be increased, and water service capacity and fire protection will be enhanced. The Notice Inviting Bids was advertised on December 13 and 15, 2010, and bids were opened on January 6, 2011. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: Contractors requesting bidding documents: Bids received: Bids received from Santa Ana Contractors- 23B -1 8 28 13 0 Contract Award For Santa Clara Avenue Sewer and Water Main Improvements March 21, 2011 Page 2 NAME OF RESPONSIVE BIDDER CITY BID AMOUNT 1. Garcia Juarez Construction, Inc. Brea $1,196,325.00 2. Mike Bubalo Construction Company Baldwin Park $1,241,900.00 3. Nikola Corporation Irvine $1,311,370.00 4. Dominguez General Engineering, Inc. Rosemead $1,311,645.00 5. Kana Pipeline, Inc. Placentia $1,370,000.00 6. J. De Sigio Construction, Inc. Baldwin Park $1,374,575.00 7. T.E. Roberts, Inc. Tustin $1,404,072.50 8. Vido Artukovich & Son, Inc. S. El Monte $1,422,800.00 9. T. B. U., Inc. Beaumont $1,532,985.00 10. MNR Construction, Inc. San Dimas $1,537,400.00 11. J. A. Salazar Construction & Supply La Habra $1,594,605.00 12. Savala Construction Irvine $1,740,692.15 13. Blois Construction, Inc. Oxnard $1,861,130.00 While the City made outreach efforts to Santa Ana contractors regarding the Notice Inviting Bids, no contractors from Santa Ana submitted bids. The eight Santa Ana contractors did not submit a bid either because they are not capable of performing this type of work, unable to obtain insurance because the project is too large, or they work as a subcontractor only for certain prime contractors. A total of 13 bids were received and all were responsive. The lowest bid was submitted by Garcia Juarez Constriction, Inc., for $1,196,325 which is below the Engineer's estimate of $1,497,500. BID PROTEST The Public Works Agency issued a Notice Inviting Bids for the above project. After bids were opened on January 6, 2011, the City received a bid protest from Mike Bubalo Construction Co., Inc., alleging that the low bidder submitted a late bid, and should have been disqualified. The contractor asserted that the late filing cannot be waived because it is a material irregularity which affects the amount of the bid and /or gives the late bidder an advantage over other bidders. The protesting party has the burden of proof to demonstrate that the staff's determination of proposed low bidder is arbitrary and capricious, or unsupported by substantial evidence in the record. The parties agree to the following facts: The Notice Inviting Bids provides that the City will receive sealed bids "on or before the hour of 2:00 p.m." Additionally, the Instructions to Bidders warns that it is the bidder's responsibility to ensure delivery of the proposal to "...the Public Works Agency, Fourth Floor Receptionist, prior to the bid opening hour stipulated in the Notice Inviting Bids. Late proposals will not be considered." W Contract Award For Santa Clara Avenue Sewer and Water Main Improvements March 21, 2011 Page 3 • The low bid, submitted by Garcia Juarez Construction, Inc., was handed to the City at approximately 2:00:10. The envelope was returned to the bidder as it was not properly sealed, whereupon, the low bidder's representative sealed the envelope and returned it to the Public Works representative at 2:00:40. • The bid was accepted by a representative from the Public Works Agency and was eventually determined to be the low bidder. • The second low bidder timely submitted a protest asserting that the delivery of the bid at 2:00:40 did not conform to the bid specifications and the bid should not have been accepted. • Both state law and the City's bid documents and policies prohibit the consideration of late bids. Cal. Government Code §53068, Cal Public Contract Code §10168. The dispute rests on each party's interpretation of "on or before" the hour of 2:00 p.m. The protesting party contends that any bid submitted after 2:00:00 is late. In support of its contention, the protesting party stated that it has submitted bids in many cities and the majority of those cities close their bid at the beginning of the hour. However, some cities utilizing a time clock without a second hand do allow bids until 2:01. Other cities' language regarding bid closure time was not provided. Santa Ana normally utilizes a time stamp that is accurate to the minute. Therefore, City policy has been that any bid submitted until 2:01 will be accepted. At 2:01 p.m., the bid would be deemed late. On the date the subject bid was closed, the time stamp was not working and interested bidders were watching the digital clock located behind the clerk's desk, which registers seconds. In compliance with the City's practice of accepting bids at 2:00, which includes the 59 seconds between 2:00:00 and 2:01, the City accepted bids until the digital clock registered 2:01. The parties agree that if the bid was submitted late, the City could not accept it. However, the protesting party did not demonstrate that the City's policy of including the 59 seconds between 2:00:00 and 2:01:00, in its interpretation of "on or before 2:00 p.m." is arbitrary or capricious. Therefore, the bid submitted by Garcia Juarez Construction, Inc., was determined to be filed on time and should be accepted by the City of Santa Ana. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempt from further review. Categorical Exemption Environmental Review No. 2011 -03 has been filed. W - 7 Contract Award For Santa Clara Avenue Sewer and Water Main Improvements March 21, 2011 Page 4 FISCAL IMPACT The funding analysis shows a total estimated construction cost of $1,495,400 for the project (Exhibit 2). Funds are available in the Water Utility Capital Projects Fund (accounting unit 06617647 - 66301) and the Sewer Services Capital Projects Fund (accounting unit 05517660- 66220). '1 Raul Godinez I Executive Director ", Public Works Agency RG/WA Exhibit 1: Project Location Map 2: Funding Analysis W APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency EXHIBIT 1 VICINITY MAP NOT TO SCALE SANTA ANA tG� P�City Council Title SANTA CLARA AVE �oJGP �qs� Agenda Date SEWER AND WATER MAIN IMPROVEMENTS V I PUBLIC WORKS AGENCY March 21, 2011 PROJECT NO. 10 -6600 AND 11 -6409 23B -5 FUNDING ANALYSIS PROJECT NOS. 106600 AND 116409 SANTA CLARA AVENUE SEWER AND WATER MAIN IMPROVEMENTS Construction Contract Contract Administration Inspection and Testing Survey Staking Contingencies TOTAL ESTIMATED CONSTRUCTION COSTS Exhibit 2 23B -7 $1,196,325 $34,443 $90,000 $55,000 $119,632 $1.495,400 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: CONTRACT AWARD FOR CITYWIDE RESIDENTIAL STREET REPAIR — PHASE 15 (PROJECT NO. 117509) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to All American Asphalt, the lowest responsible bidder, in accordance with unit bid prices in the estimated amount of $1,051,295 for construction of Citywide Residential Street Repair — Phase 15. 2. Approve a funding analysis with a total estimated construction cost of $1,682,000. DISCUSSION This is the last phase of the City's Residential Street Repair program to repair neighborhood streets throughout the city. Segments of local streets in city neighborhoods have been identified as a high priority for rehabilitation in the City's pavement management system (Exhibit 1). The pavement is deteriorating due to weather, age, and heavy usage. Additionally, some of the adjacent curbs, gutters, sidewalks, cross gutters, and curb ramps are in various states of disrepair and require replacement. The project utilizes the most cost - effective, innovative, and environmentally sound technologies, including recycling of existing asphalt pavement with cement treated base reconstruction process. The project also provides for grinding asphalt, asphalt pavement overlay, and replacement of damaged concrete curbs, gutters, sidewalks, cross gutters, and curb ramps. Once completed, these improvements will enhance the ride quality, surface drainage, and appearance of the neighborhoods. The Notice Inviting Bids was advertised on February 2 and 7, 2011 and bids were opened on February 23, 2011. A summary of the bid invitations mailed, the bids received, and the bid results follows. 23C -1 Contract Award for Residential Street Repair — Phase 15 March 21, 2011 Page 2 Santa Ana Contractors receiving notices: Contractors requesting bidding documents: Bids received: Bids received from Santa Ana Contractors: NAME OF RESPONSIVE BIDDER 1. All American Asphalt 2. Hardy and Harper 3. R.J. Noble Company 4. Excel Paving Company 5. Elite Bobcat Service, Inc. 0 7 5 CITY BID AMOUNT Corona $1,051,295 Santa Ana $1,161,000 Orange $1,269,855 Long Beach $1,308,990 Corona $1,319,125 A total of five bids were received and all were responsive. The lowest bid was submitted by All American Asphalt for $1,051,295 which is below the Engineer's estimate of $1,063,150. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempt from further review. Categorical Exemption Environmental Review No. 2011 -20 was filed for this project. In addition, a Certification of Categorical exemption and Statutory Worksheet have been prepared in accordance with the National Environment Policy Act. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $1,682,000 for the project (Exhibit 2). Funds are available in the Community Development Block Grant Fund (accounting unit 13518783 - 66220) and in the Public Works Account for Residential Street Repair Fund (accounting unit 05817661 - 66220). w Raul Godinez II Executive Director Public Works Agency �h" UL44� f Nancy T. E4wards Interim Exe utive Director Community Development Agency RGNVA APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez r-e Executive Director Finance & Management Services Agency Exhibit 1: Project Location Map 2: Funding Analysis 23C -2 F'il Ill 0 S \NTA A\A FUNDING ANALYSIS PROJECT NO. 117509 CITYWIDE RESIDENTIAL STREET REPAIR PHASE 15 Construction Contract $1,051,295 Contract Administration $32,623 Inspection and Testing $80,000 Survey Staking $45,000 Contingencies $473,082 TOTAL ESTIMATED CONSTRUCTION COSTS $1,682,000 Exhibit 2 23C -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: CONTRACT AWARD FOR BRISTOL/WARNER INTERSECTION WIDENING (PROJECT NOS. 091752 AND 116407) L 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 1. Award a contract to Hillcrest Contracting, the lowest responsible bidder, in accordance with unit bid prices in the estimated amount of $1,215,538.25 for construction of Bristol/Warner intersection widening. 2. Approve a Funding Analysis with a total estimated construction cost of $1,519,400. DISCUSSION Bristol Street at Warner Avenue is a part of the Bristol Street Specific Plan to widen from Warner Avenue to 17th Street (Exhibit 1). Due to congested traffic, this project will provide dual northbound and southbound left turn lanes and a westbound right turn lane. With these improvements, the intersection is expected to improve traffic flow. The Notice Inviting Bids was advertised on January 28 and 31, 2011 and bids were opened on March 3, 2011. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: 1 Contractors requesting bidding documents: 24 Bids received: 5 Bids received from Santa Ana Contractors: 0 NAME OF RESPONSIVE BIDDER CITY BID AMOUNT 1. Hillcrest Contracting Corona $1,215,538.25 2. All American Asphalt Corona $1,333,333.00 3. Excel Paving Company Long Beach $1,431,997.00 4. R. J. Noble Company Orange $1,563,887.60 5. Sequel Contractors Santa Fe Springs $1,555,225.00 23D -1 Contract Award Bristol/Warner Intersection Widening March 21, 2011 Page 2 Hardy and Harper Inc., a Santa Ana contractor, was notified; however they did not submit a bid because they were too busy bidding other projects. A total of five bids were received and all were responsive. The lowest bid was submitted by Hillcrest Contracting for $1,215,538.25, which is below the Engineer's estimate of $1,500,000. ENVIRONMENTAL IMPACT An Environmental Impact Statement for the Bristol Corridor from Warner Avenue to Memory Lane was approved by the City Council in 1990. In accordance with the California Environmental Quality Act, the recommended action is exempt from further review. Categorical Exemption ER Nos. 2011 -18 and 2011 -19 were filed for this project. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $1,519,400 for the project (Exhibit 2). Funds are available in the Measure M Street Construction Fund (accounting unit 03217660- 66220), the OCTA Bristol Street Corridor Improvements Fund (accounting unit 05917661- 66220), and the Water Utility Capital Projects Fund (accounting unit 06617647 - 66301). APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Francisco Gutierrez Executive Directo Executive Director Public Works Agency Finance & Management Services Agency RGNVA Exhibit 1: Project Location Map 2: Funding Analysis W IWI FUNDING ANALYSIS PROJECT NOS. 091752 AND 116407 BRISTOL/WARNER INTERSECTION WIDENING Construction Contract $1,215,538 Contract Administration $32,309 Inspection and Testing $90,000 Survey Staking $60,000 Contingencies $121,553 TOTAL ESTIMATED CONSTRUCTION COSTS $1.519,400 Exhibit 2 23D -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 CLERK OF COUNCIL USE ONLY: TITLE APPROVED CONTRACT AWARD FOR THE FIRST ❑ As Recommended As STREET BRIDGE REPLACEMENT ❑ Or Amended ❑ Ordinance on 1" Reading OVER THE SANTA ANA RIVER ❑ Ordinance on 2nd Reading (PROJECT NO. 061723) El implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Award a contract to Powell Constructors, Inc., the lowest responsible bidder, in accordance with unit bid prices in the estimated amount of $6,010,329 for construction of the First Street bridge replacement over the Santa Ana River effective Monday, March 28, 2011, subject to compliance with all City rules and regulations. 2. Approve a funding analysis with a total estimated construction cost of $8,113,900. DISCUSSION Currently, the First Street Bridge over the Santa Ana River consists of two travel lanes in each direction (Exhibit 1). This project will widen the bridge and the approaches to three lanes in each direction, along with bike lanes and with pedestrian sidewalks on both sides to make this segment of First Street consistent with the Orange County Master Plan of Arterial Highways and the City's Circulation Element. The proposed work includes demolishing the existing bridge and construction of a new, wider bridge. Other improvements include medians, trail connections to the Santa Ana River and landscaping along the approaches to the bridge. The work will be conducted in two phases. In the first phase, traffic will be directed to the south half of the bridge while the north half will be demolished and rebuilt. The second phase of the project will start immediately following completion of the first phase. Traffic in this phase will be directed to the newly completed north half of the bridge during construction of the south half. Once completed, these improvements will enhance flow of traffic, pedestrian safety and ride quality of the bridge. 23E -1 Contract Award for the First Street Bridge Replacement Over the Santa Ana River March 21, 2011 Page 2 The Notice Inviting Bids was advertised on February 18 and 19, 2011, and bids were opened on March 17, 2011. A summary of the bid invitations mailed, the bids received, and the bid results follows: Santa Ana contractors receiving notices: Contractors requesting bidding documents: Bids received: Bids received from Santa Ana contractors: The bids received are as follows: NAME OF RESPONSIVE BIDDER 1. Powell Constructors, Inc. 2. C.C. Myers, Inc. 3. Riverside Construction Company, Inc. 4. Griffith Company 5. Ortiz Enterprises Inc. 6. MCM Construction, Inc. 7. Steve P. Rados, Inc. 8. SEMA Construction, Inc. 9. FTR International, Inc. 10. Reyes Construction, Inc. 47 64 10 CITY BID AMOUNT Fontana $6,010,329.00 Rancho Cordova $6,256,823.30 Riverside $6,353,994.50 Brea $6,503,674.94 Irvine $6,587,060.40 North Highlands $6,598,994.05 Santa Ana $6,918,010.90 Lake Forest $7,171,938.86 Irvine $7,522,176.00 Pomona $7,646,199.40 While the City made outreach efforts to Santa Ana contractors regarding the Notice Inviting Bids, only one Santa Ana contractor submitted a bid as a prime contractor. Also, Hardy and Harper, a Santa Ana -based contractor is a sub to the low bidder. The other 45 Santa Ana contractors did not submit a bid either because they are not capable of performing this type of work, unable to obtain insurance because the project is too large, or they work as a subcontractor to certain prime contractors. A total of 10 bids were received and all were responsive. The lowest bid was submitted by Powell Constructors, Inc. for $6,010,329, which is below the Engineer's estimate of $10,400,000. The downturn of the economy and the competitive market contributes to the low bids received. The project is partially funded with Highway Bridge Replacement and Rehabilitation funds and Measure M funds. The project must be awarded by March 31, 2011 as required by Orange County Transportation Authority. According to the bidding documents, bidders may protest the bidding results within five business day following bid opening and are entitled to an administrative hearing to be conducted by the Executive Director of Public Works. Therefore, this award is valid only if the City does not receive any legitimate bid protests. 23E -2 Contract Award for the First Street Bridge Replacement Over the Santa Ana River March 21, 2011 Page 3 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempt from further review. Notice of Determination ER No. 2010 -108 was filed for this project. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $8,113,900 for the project (Exhibit 2). Funds are available in the Measure M Street Construction Fund (accounting unit 03217660- 66220, project no.061723) and the Select Street Construction Fund (accounting unit 05917660- 66220, project no. 061723). Rau odinez II .� Executive Directo Public Works Agency RG /ET Exhibit 1: Project Location Map 2: Funding Analysis APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez �,6 Executive Director Finance & Management Services Agency 23E -3 23E -4 LEGEND ® PROJECT LIMITS EXHIBIT 1 SANTA ANA Cmr COUNCIL TITLE: CONTRACT AWARD FOR THE FIRST P� W q ■ AGENDA DATE STREET BRIDGE REPLACEMENT OVER V MARCH 21, 2011 THE SANTA ANA RIVER PUBL IC WMKS AMWY (PROJECT NO. 061723) i 23E -6 FUNDING ANALYSIS PROJECT NO. 06 -1723 CONTRACT AWARD FOR THE FIRST STREET BRIDGE REPLACEMENT OVER THE SANTA ANA RIVER Construction Contract $6,010,329 Contract Administration $240,400 Inspection and Testing $661,105 Contingencies $1,202,066 TOTAL ESTIMATED CONSTRUCTION COSTS $8,113,900 EXHIBIT 2 23E -7 W oel MARCH 21, 2011 TITLE: AGREEMENT FOR EXPANSION TO POLICE DIGITAL IMAGING MANAGEMENT SYSTEM ��� CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED Q As Recommended � As Amended (] Ordinance on 'Ist Reading � Ordinance on 2ntl Reading � Implementing Resolution � Set Public Hearing For CONTINUED TO FILE NUMBER Direct the City Attorney to prepare and authorize the City Manager, Chief of Police and the Clerk of the Council to execute an agreement with Linear Systems for the expansion and upgrade of the Digital Imaging Management System (DIMS), which maintains all photographic still, video and audio evidence for the city and police department, in an amount not to exceed $31 ,240.56. DISCUSSION The Police Department's Digital Imaging Management System (DIMS) was purchased in 2005 through Urban Area Security Initiative (UASI) funds and allows crime scene images to be captured and stored digitally. It currently houses over four - hundred thousand crime scene photographs and countless hours of crime scene video footage and audio interviews. This system is a compulsory investigative tool that assists in the successful documentation of extensive crime scenes. Such a system is of paramount importance to criminal investigations and its maintenance, continued security, and storage redundancy is undeniably obligatory. As of January 201 1 , this system has reached 93% capacity, as it has not been expanded since inception. The responsible vendor, Linear Systems, has been accommodating, professional and consistent in it's servicing of the system thus far. FISCAL IMPACT Funds are available in the Police Department's Asset Forfeiture Account #02614450 62300_ � � � Paul M. Walters Chief of Police Police Department APPROVED AS TO FUNDS AND ACCOUNTS: Francesco Gutierrez Executive Director Finance &Management Services Agency�� 25A -1 25A -2 FIFTH AMENDMENT TO DIGITAL IMAGING MANAGEMENT SYSTEM CONSULTANT AGREEMENT THiS FIFTH AMENDMENT TO AGREEMENT is entered into on this � day of � V , 20 L 1, by and between Linear Systems ( "Consultant ") and the City of Santa Ana, a charter city and municipal corporation of the State of California ( "City "). RECITALS: A. The parties entered into Agreement # A- 2005 -] 66, dated July 21, 2005, (hereinafter "said Agreement ") by which Consultant has provided digital imaging software and maintenance for use by the City's Police Department Forensic Division. B. Said Agreement was subsequently amended by First Amendment to Agreement No. A- 2006 - 166 -07, dated March 28, 2007, to include additional equipment and provided extended warranties, support and maintenance. C. Said Agreement was subsequently amended by Second Amendment to Agreement No. A- 2006 - 166 -02, dated March 6, 2008, to extend the warranties, maintenance and support and to set forth the parties' agreement as to the annual maintenance period. D. Said Agreement was subsequently amended by Third Amendment to Agreement No. A- 2009 -046, dated May 4, 2009, to extend the warranties, maintenance and support and to set forth the parties' agreement as to the annual maintenance period. E. Said Agreement was subsequently amended by Fourth Amendment to Agreement No. A- 2010 -230, dated November 15, 2010, to provide equipment upgrades, extend the term of software support and maintenance provisions, and increase compensation to pay for the upgrades and support and maintenance. F. In accordance with the terms and conditions of said Agreement, the parties wish to amend said Agreement to expand the City's current 3.2 TB Digital Imaging System server to a 16TB capacity to ensure continued support of all Santa Ana Police Department's digital evidence assets, provide for training, temporary storage systems as necessary during the expansion, provide for ongoing maintenance and support services for the expanded system at no additional charge to City, and to increase compensation to pay for costs related to the expanded system. 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: 25A -3 1. Section 1, SCOPE, shall be amended to expand the City's current 3.2 TB Digital imaging System server to a 16TB capacity server and to include equipment and services performed by�Consultant as set forth in Exhibit 1, attached hereto and incorporated by reference. 2. In addition, Section 1, SCOPE, shall be amended to: (a) require Consultant to provide training on the enhanced system to the City's Digital Imaging System Administrators) at no additional charge; and (b) reflect that Consultant shall supply, on a loan basis, additional storage systems in addition to the upgraded systems that are to be purchased under this Fifth Amendment, to allow triple redundancy with no loss of functionality during the upgrade process. 3. Section 3(a), COMPENSATION, shall be amended to increase compensation to an amount not to exceed $3 ],240.56 to pay for expansion of the City's current 3.2 TB Digital imaging System server to a 1 6TB capacity Digital Imaging System server and to include equipment and services performed by Consultant, as set forth in Exhibit 1, attached hereto and incorporated by reference. There shall be no compensation paid for ongoing maintenance and support services of the enhanced system in addition to that compensation for maintenance and support services set forth in the Fourth Amendment to said Agreement. 4. Consultant represents that its staff has been screened by background checks and is authorized such as to allow secured access to the Santa Ana Police facility and server rooms. 5. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. /// /// /// /// /// /// /// /// /// 25A -4 IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment to said Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY d p ,i �_ Teresa "C. Judd �,;' Assistant City Attorney RECOMMENDED FOR APPROVAL: PAUL M. WALTERS Chief of Police 25A -5 CITY OF SANTA ANA DAVID N. REAM City Manager LINEAR SYSTEMS (Print Name) (Print Title) �� -hi ►� -15 I�i4 -/L- SO N. S� ctv EXHIBIT 1 25A -6 Santa Ana Police Department Digital Imaging Project Equipment Digira! Injormafion Management System ImageServer Solution #LS- 6200X7 DLMS Database Case Management Decoding ImageServer Rack 16.0 "fH DIMS ImageServer 2U Rack redundant SOOW power supplies 12 SATA H bays 7 S Y," bat DIMS quad -core processor Intel 4GB RAM I.OTB O/S DIMS Usage Server Controller Module w/ LCD 16.OTB RAID 6 w/ 64 -bit PCI -X SX Processor SATA II IQ net manager 4.OTH auto hot spare auto rebuild (I6.OTB total drive capacity 12.076 usable) 2.076 RAID certified server class high speed hard drives RAID controller w/ write cache battery backup module DIMS Extended Dynamic Volume Allocation Array Module 64 -Bit A/D converter DIMS acquisition encryption ca- processor SMARTi500LCD line interactive UPS system ' Installation @Linear •* *This pricing is re0eclive ofa trade -in. * ** This unit requires add -on chassis for upgrade Digira/ h[jornration Management System Archive Storage #LS -600XR DIMS real -time online archive Rcdunda nt Network Storage FallSafe Solution D1M5 RAID 6 RNSS 21J rack chassis Mple redundant SOUW power supplies 16.076 RAID 6 RNSS 4.076 auto hot spare auto rebuild (16.076 total drive capacity 12.076 usable) 2.OTB RAID certified server class high speed hard drives RAID controller w/ write cache battery backup module DIMS UnageServer O/S FailSaf'e DIMS FailSafe multi -user case management database ( redundan Umirrored) DIMS Extended Dynamic Volume Allocation Array Module DIMS Extended Dynamic Volume Allocation Array Module Installation @Linear * ** This unit i5 upgnrdeable to 48.076 by adding additional drives • *" This unit does not include UPS Dlgitn! Lrjorrnafion Nanagemenf System Archive Storage #LS -600XR DIMS real -time online archive Redundant Nehvork Storage Solution 16.OTS DIMS RAID 6 RNSS 2U rack chassis triple redundant SOOW power supplies 16.076 RAID 6 RNSS 4.OTB auto hot spare auto rebuild (L6.OTB total drive capacity 12.076 usable) 2.076 RAID certified server class high speed hard drives RAID controller w/ write cache battery backup module DIMS Extended Dynamic Volume Allocation Array Module DIMS Extended Dynamic Volume Allocation Array Module Installation @Linear * *^ This unit is upgradeable to 48.OTB by adding additional drives * ** This unit does no[ include IJPS Digital /njorm[ttion Management System Solution Service Installation, integration, calibre [ion, testing, 8c QC Man/days onsite per day including travel Zone # 1 M aNdays multiple site onsite per day Zone #1 Supervised remote access software support Fe upgredes (Internet access required) * ** Installation does not include ofl'site for Acquisition Stations a[ area commands Depot mat ntenance 8c support contract 1 year parts 8c labor depot service (@ Linear) 5 year soRware version upgrades &, maintenance 5 years telephone technical support hardware 8c soRware (normal business hours) $1 6,894.00 16.0"l'6 Phase I : ' $ I�6,$94�,(50 -� ] $9,294.00 $9,294.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $5,000.00 $5,000.00 1 $0.00 $0.00 1 $2,600.00 $2,600.00 $1 L,894.00 1 $9,294A0 $9,294.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 ] $0.00 $0.00 1 $2,600.00 $2,600.00 $ 1,000.00 Phase I ':� "' $1.q,Q,P,R.P,+ 1 $7,000.00 $],000.00 O $800.00 $0.00 I $0.00 $0.00 Phase 1 $O,OI) -,; 1 $0.00 $0.00 1 $0.00 $0.00 I $0.00 $0.00 PreFerred Customer Oiscount 2 /1 /ROI I 3:29 YM Phase Quonllty Unit S E.tended S Total $ Sales Tax $29.435.00 Shipping $1 6,541.00 Phase I $0.00 * ** All Ilsted eapacltles assume LOTB = 1,OOQ000,000,000 bytes. *** Vii, ";�l'8;�41.0O'r I $13,941.00 $13,941.00 I $o.00 $o.00 Terms. N -30 1 $0.00 $0.00 GSA #: GS- 35F -0547K 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $2,600.00 $2,600.00 $1 6,894.00 16.0"l'6 Phase I : ' $ I�6,$94�,(50 -� ] $9,294.00 $9,294.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $5,000.00 $5,000.00 1 $0.00 $0.00 1 $2,600.00 $2,600.00 $1 L,894.00 1 $9,294A0 $9,294.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 1 $0.00 $0.00 ] $0.00 $0.00 1 $2,600.00 $2,600.00 $ 1,000.00 Phase I ':� "' $1.q,Q,P,R.P,+ 1 $7,000.00 $],000.00 O $800.00 $0.00 I $0.00 $0.00 Phase 1 $O,OI) -,; 1 $0.00 $0.00 1 $0.00 $0.00 I $0.00 $0.00 25A -7 PreFerred Customer Oiscount $46,329.00 No Errors 8c Omissions Coverage ($ 16,894.00) Subtotal No $0.00 Sales Tax $29.435.00 Shipping 8.75% $1,805.56 $0.00 * ** All Ilsted eapacltles assume LOTB = 1,OOQ000,000,000 bytes. *** $} 1,240.56 ` ** Discount reflects donation of 3rd repository and FallSafe for RNSS. *'^* Linear Systems LINEAR SYSTEMS Rancho Cucamonga, CA + -�V •"' 'wW _._A -y Valid until: 3/16/2011 p„a,,,q Chris Parsons 909- 8994345 LAW ENFORCEMENT Terms. N -30 909 -899 4346 fax Ship Via: Truck . "._ li :asp, ass ._:v D � V 1SfON GSA #: GS- 35F -0547K 25A -7 25A -8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: AMENDMENT TO 1992 AGREEMENT WITH THE CITY OF IRVINE REGARDING THE IRVINE BUSINESS CENTER DE ELOPMENT ITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2 n 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 1992 agreement for implementing the Roadway & Interchange Mitigation Program with the City of Irvine for the Irvine Business Center (IBC) development, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION On July 13, 2010, the City of Irvine certified the environmental impact report for the Irvine Business Center Vision Plan (IBC). The project includes an increase in residential units from 9401 units to a potential maximum of 16,191 units, including density bonus, and a reduction of 2,715,062 square feet of non - residential development. The traffic study prepared as part of the project environmental impact report indicates that the Alton Avenue Overpass at State Route (SR) 55 is unnecessary under the build -out of the IBC. However, Santa Ana staff believes the overcrossing is needed to relieve traffic along MacArthur Boulevard and Dyer Road, and is vital to the redevelopment of the area encompassed by SR 55, Columbine Avenue, Main Street, and Dyer Road. Further, all previous traffic studies concluded the need for the Alton Avenue Overpass to relieve traffic congestion along MacArthur Boulevard. The traffic study identified fair share contributions for mitigations at the following locations within the City of Santa Ana: • Bristol Street at Segerstrom Avenue Intersection • Main Street at Dyer Road Intersection • Grand Avenue at Warner Intersection • MacArthur Boulevard Widening from Main Street to State Route 55 25B -1 Irvine Business Center Agreement With City Of Irvine March 21, 2011 Page 2 of 2 Public Works Agency staff determined that these four listed traffic mitigation projects would be unlikely to happen due to the extensive right of way required for implementation, and that several of them are infeasible. Instead of requiring Irvine to provide their fair share for these improvements, staff recommends continuing to require Irvine to contribute to the Alton Avenue Overpass project. Therefore, staff worked with the City of Irvine to amend the existing 1992 IBC agreement, while retaining the requirement for the Alton Avenue Overpass. The agreement requires each city to contribute 50% of the match funding required by future grants or other entities. The agreement also requires Irvine to fully fund the widening of Dyer Road from a six -lane major arterial to an eight -lane principal arterial, and documents Irvine's responsibilities relative to private property parking impacts which may be caused during right -of -way acquisition for the Dyer Road widening project. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act (CEQA), the proposed project is exempt from further review. An Environmental Impact Report was filed for this project by the City of Irvine. FISCAL IMPACT There is no fiscal impact associated with this action. A r Raul odinez II Executive Directo Public Works Agency RGrrH Exhibit: 1. Agreement AMENDMENT TO AND RESTATEMENT OF THE 1992 AGREEMENT BETWEEN THE CITIES OF SANTA ANA AND IRVINE THIS AGREEMENT ( "Agreement ") entered into and shall be effective on this day of , 2011 by and between the City of Santa Ana, hereinafter referred to as "Santa Ana," and the City of Irvine, hereinafter referred to as "Irvine." Santa Ana and Irvine are collectively referred to as the °Parties." This AGREEMENT replaces and supersedes in its entirety that certain agreement dated November 24, 1992 by and between the Parties titled "Implementation of Roadway and Interchange Mitigation Program for EIR 88 -ZC -0087" ( "1992 Agreement. "). A true and correct copy of the 1992 Agreement is attached hereto as Exhibit "A." RECITALS A. WHEREAS, on July 13, 2010 Irvine certified an Environmental Impact Report for certain General Plan Amendments and Zone Changes that are collectively known as the "IBC Vision Plan." That same evening, Irvine approved the General Plan Amendment for the IBC Vision Plan, and conducted a first reading for the Zone Change for the IBC Vision Plan. On July 27, 2010, Irvine conducted a second reading for the Zone Change for the IBC Vision Plan. The IBC Vision Plan is hereinafter referred to as the Project." The Project is generally bounded by the former Tustin Marine Corps Air Station (MCAS) to the north, the San Diego Creek channel to the east, John Wayne Airport and Campus Drive to the south and State Route 55 (SR -55) to the west. The Project is bordered by the cities of Newport Beach, Santa Ana, Costa Mesa and Tustin. The Project includes and /or contemplates (J) an increase in total units in the Irvine Business Complex ( "IBC') from 9,401 units to 15,000 units, and (ii) a reduction of 2,715,062 square feet of nonresidential development (measured in office equivalency). In addition, a total of 1,191 density bonus units could be allowed (and are therefore assumed as part of the Project) in accordance with state law, resulting in a total of 16,191 units; and W :151 B. WHEREAS, a Traffic Impact Study (TIS) has been prepared for the Project that identifies Project - related impacts and corresponding pro -rata funding fair - shares for the following intersections and roadway segment in Santa Ana: • Bristol Street at Segerstrom Intersection —12.7% • Main Street at Dyer Road Intersection — 21 % • Grand Avenue at Warner Avenue Intersection —15.8% • MacArthur Boulevard widening from Main Street to SR55 — 31.1% Each intersection and roadway segment listed above shall hereinafter be referred to as "Project Impact" and collectively be referred to as "Project Impacts," and the corresponding pro-rata funding fair - shares shall hereinafter be referred to as "Improvement Fair Share Contributions "; and C. WHEREAS, Santa Ana currently has no fee program designed to collect fees for the mitigation of any of the Project Impacts; and D. WHEREAS, the Project involves the same land area — the IBC — that was the subject of certain Irvine General Plan Amendment and Irvine Zoning Code Amendments project, together with a mitigation fee program and an Environmental Impact Report ( "IBC EIR "), for which approvals and certifications were completed by 1992 (collectively, the "1992 Entitlements "); and E. WHEREAS, in connection with the 1992 Entitlements, the Parties entered into the 1992 Agreement, which outlines the Parties' roles and responsibilities in implementing certain transportation improvements identified in the 1992 Entitlements; and F. WHEREAS, the 1992 Agreement may be amended upon the mutual consent of both Parties; and G. WHEREAS, this Agreement is intended to, and does, restate in full and supersede the 1992 Agreement. 25B -4 NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby amend and restate in full the 1992 Agreement in full as follows: 1. Limit on new development in the IBC The parties hereto agree that Irvine will not issue building permits for development in the IBC which would cause the total development in the IBC (existing development plus development occurring after the date of this Agreement) to exceed 51,000,000 square feet of office equivalency development (as defined in the Irvine Zoning Code) until after the following street improvements, located in the City of Santa Ana, have been completed: (a) The widening of Dyer Road to eight (8) lanes from a point commencing just east of the SR -55 freeway northbound direct connector on -ramp to and including the Redhill - Dyer /Barranca Avenue intersection, as provided in the IBC EIR mitigation measures, hereinafter referred to as the "Roadway Improvement. (b) An Alton Avenue overcrossing of the SR -55 Freeway, hereinafter referred to as the " Overcrossing Improvement ". If, notwithstanding Irvine's agreement to limit the issuance of building permits as set forth hereinabove, the total development in the IBC exceeds 51,000,000 square feet prior to the completion of the Roadway Improvement and Overcrossing Improvement; A. Irvine shall pay to Santa Ana Irvine's share of the Total Costs (as defined in Section 2 herein below) of the Overcrossing Improvement, to the extent such Total Cost remain unpaid. Any amounts received by Santa Ana pursuant to this paragraph shall be expended by Santa Ana in accordance with Section 3 herein below. As of the date of this agreement, Irvine has issued building permits in the IBC for 41,671,636 square feet of office equivalency development. B. Irvine shall deposit the Total Costs (as defined in Section 2 herein below) 25B -5 of the Roadway Improvement, to the extent such Total Costs remain outstanding, in an interest bearing account in a financial institution acceptable to both Irvine and Santa Ana. Irvine shall not withdraw any of the principal of such amount except in connection with the design and construction of the Roadway Improvement, including but not limited to alignment studies, necessary environmental documentation, land acquisition costs, costs of design and construction, and administrative staff costs related to the Roadway Improvements. 2. Responsibilities of the Parties A. "Total Costs" defined. The term "Total Costs" means all costs incurred in the design and construction of an improvement (i.e., the Roadway Improvement or the Overcrossing Improvement), including, but not limited to, costs of preparation of environmental documentation, costs of land acquisition (including any costs incurred in any eminent domain action), costs of design and construction, and Santa Ana's administrative staff costs, so long as such administrative staff costs related to Roadway Improvement do not exceed 5% of the Total Costs (excluding administrative staff costs) of the improvement ("Improvement Work "). B. To assist in minimizing Total Costs of Roadway Improvement, Santa Ana shall consider and process for approval a reduction of otherwise required landscape setbacks during the right of way acquisition phase of the project if, absent such reduction, the taking of buildings would be necessary to construct the Roadway Improvement. Irvine will mitigate parking losses incurred by any parcels affected by partial acquisitions by the addition of onsite parking spaces through reconfiguration of the site, or by acquisition and development of adjacent real estate for parking. All parking mitigation plans will be subject to the approval of Santa Ana. C. "Lead Agency" defined. As used herein, the term "Lead Agency" means the city (Irvine or Santa Ana) which is responsible for undertaking the Improvement Work, either through its own employees or through independent contractors, except as otherwise provided herein below. D. Funding responsibilities. Irvine shall be responsible for 100% the Total Cost of the Roadway Improvement, less any portion the Total Costs of the Roadway Improvement for which any entity other than Santa Ana assumes responsibility. Irvine will support City of Santa Ana's effort in obtaining local, state and federal grants for the Overcrossing Improvement. Irvine and Santa Ana shall each be responsible for 50% of the Total Costs of the Overcrossing Improvement; provided, however, that if any entity(ies) and /or grant funds other than Irvine or Santa Ana contribute(s) to the Total Costs of the Overcrossing Improvement ( "Third Party Contributions) "), Irvine's and Santa Ana's contribution shall each be reduced in an amount equal to 50% of said Third Party Contribution(s). Nothing herein shall be construed to restrict the ability of Irvine and /or Santa Ana to obtain funds to meet their funding responsibilities hereunder through the imposition of development fees or such other revenue measures (collectively "Development Fees ") as may be deemed appropriate by Irvine and /or Santa Ana, and said Development Fees shall not be deemed to be Third Party Contributions. Irvine shall have no responsibility to contribute in any way to the mitigation of the Project Impacts (as defined in Recital B above), whether through the payment of the Improvement Fair Share Contribution (as defined in Recital B above) or otherwise. Responsibility for mitigation of the Project Impacts shall belong to Santa Ana or such other entities (other than Irvine) as may assume responsibility to mitigate the Project Impacts. E. Lead Agency Responsibilities. Except as otherwise provided in Section 3 of this Agreement, Irvine shall be the Lead Agency for the Roadway Improvement, provided, however, that to the extent that Irvine is unable to acquire land necessary for the Roadway Improvement due to Irvine's inability to apply its powers 25B -7 of eminent domain to properties located within Santa Ana, Santa Ana shall assume Lead Agency responsibilities with respect to such land acquisition. All design plans and environmental documentation for the Roadway Improvement that is prepared by or on behalf of Irvine as Lead Agency shall be subject to approval by Santa Ana, which approval shall not be unreasonably withheld or delayed; provided, however, that Santa Ana may require all design plans to conform to Santa Ana design standards in effect at the time such plans are submitted. Santa Ana shall be the Lead Agency with regard to the Overcrossing Improvement. All alignment and design plans and environmental documentation for the Overcrossing Improvement that are prepared by or on behalf of Santa as Lead Agency shall be subject to approval by Irvine, which approval shall not be unreasonably withheld or delayed. Santa Ana shall indemnify, defend and hold Irvine, its City Council members, officers, officials, employees, agents and representatives harmless from and against any and all actions, claims, demands, judgments, attorneys fees, costs, damage to persons or property, penalties, obligations, expenses or liabilities that may be asserted or claimed by any person or entity arising out of the negligent acts or omissions of Santa Ana in connection with the design, construction or maintenance of the Roadway Improvement or Overcrossing Improvement. Irvine shall indemnify, defend and hold Santa Ana, its City Council members, officers, officials, employees, agents and representatives harmless from and against any and all actions, claims, demands, judgments, attorneys fees, costs, damage to persons or property, penalties, obligations, expenses or liabilities that may be asserted or claimed by any person or entity arising out of the negligent acts or omissions of Irvine in connection with the design, construction or maintenance of the Roadway Improvement or Overcrossing Improvement; provided, however, that upon completion of the Roadway Improvement, and upon satisfactory completion of inspection by appropriate personnel 96� for the City of Santa Ana, Irvine shall dedicate or convey the Roadway Improvement in its entirety to Santa Ana (to the extent necessary), and shall thereafter have no further liability or responsibility to Santa Ana in connection with the Improvement Work on the Roadway Improvement. However, Irvine shall cooperate with Santa Ana in the prosecution of any required construction defect claims in regard to the Roadway Improvements. F. Payment of costs. Irvine shall reimburse Santa Ana for any portion of the Total Costs of the Roadway Improvement incurred by Santa Ana if Santa Ana acts as Lead Agency, subject to the restrictions and limitations contained in this Agreement, as follows: Santa Ana shall invoice Irvine not more than once monthly for costs incurred since the previous invoice. Each invoice shall be accompanied by a detailed statement of the nature of the costs incurred. Each proper invoice shall be paid by Irvine within thirty (30) days of receipt. The parties agree to meet and confer in good faith to resolve any dispute over any invoice or the need and necessity of any costs incurred. With regard to any action in eminent domain undertaken by Santa Ana in the implementation of this Agreement, Santa Ana may require commercially reasonable advance payments from Irvine at such times as Santa Ana determines to be appropriate to discharge its responsibilities in such action. The provisions of this paragraph may be modified by the mutual agreement of the City Managers of Irvine and Santa Ana. G. Monitoring of Building Permits. Irvine shall monitor the extent of development authorized by the issuance of building permits in the IBC and submit annual reports to Santa Ana. The Annual Report shall indicate the gross square feet of development authorized by building permits issued for development in the IBC. W. .-1 H. Cooperation. The Parties shall cooperate in the implementation of this Agreement. In particular, Irvine will: (i) retain the Overcrossing Improvement and the Roadway Improvement in the County's Master Plan of Arterial Highways (MPAH), (ii) support Santa Ana in any application for grant funding for the Overcrossing Improvement, and (iii) support Santa Ana in requesting that Orange County Transportation Authority (OCTA) include the Overcrossing Improvement as part of the SR55 freeway widening project. Similarly, Santa Ana will: (i) support Irvine in any application for grant funding for the Roadway Improvement. 3. Payment by Irvine to Santa Ana of Irvine's share: A. Overcrossing Improvement. If Santa Ana does not have available funds necessary to enable it to perform its funding obligation for the Overcrossing Improvement at such time as Irvine is prepared to provide funds for the completion of the Overcrossing Improvements, the City Managers of Irvine and Santa Ana shall defer the construction of the Overcrossing Improvement to a mutually agreeable date, provided, however, in the event that parties can not mutually agree upon a deferred date, Irvine may choose to pay Santa Ana the amount of its obligations for the completion of the Overcrossing Improvement in order to be relieved and would in that event, notwithstanding any other provision of this Agreement, be permitted to issue building permits for development in excess of 51,000,000 square feet in the IBC, B. Amount of payments. The payment due to Santa Ana from Irvine pursuant to this section shall be the estimated Total Cost of the Overcrossing Improvement as agreed between Irvine and Santa Ana, to the extent of the work that remains to be done, at the time payment is made. C. Use of funds by Santa Ana. Any funds received by Santa Ana from Irvine pursuant to this section for the Overcrossing Improvement shall be maintained in a separate fund by Santa Ana, which fund shall be used solely for the completion of the Overcrossing Improvement. 4. Amendment of Santa Ana General Plan. Santa Ana shall process a General Plan Amendment, as necessary to accommodate the Roadway Improvement (the "GPA "). The Parties acknowledge that as part of the GPA, Santa Ana may alter its current designations for Dyer Road outside the area of the Roadway Improvement. Irvine shall not object to any portion of the GPA that is consistent with this Paragraph 4. Until Santa Ana amends its General Plan to accommodate the Roadway Improvement, or certifies to Irvine that the Santa Ana General Plan accommodates the Roadway Improvement, Irvine shall have no obligation to fund the Roadway Improvement. 5. Covenant Not to Sue. Each Party, and its respective agents, officers, employees, representatives and assigns hereby agrees and covenants that this Agreement forever satisfies any past, present, or future claims which the Party, and its agents, officers, employees, representatives or assigns had, has or may have against the other Party or its agents, officers, employees, representatives, and assigns arising out of the IBC Vision Plan, the 1992 Entitlements and the 1992 Agreement. Each Party hereto covenants not to file any future legal actions of whatever kind or nature against the other Party regarding any claim in connection with the IBC Vision Plan, the 1992 Entitlements and the 1992 Agreement, whether such claim is known or unknown, suspected or unsuspected, fixed or contingent. 6. Waiver of Civil Code Section 1542. With regard to matters arising from or related to IBC Vision Plan, the 1992 Entitlements and /or the 1992 Agreement, each of the Parties hereto expressly waives any and all rights that they may have under Civil Code section 1542 ( "Section 1542 ") or any Federal or State statutory right, rules or principles of common law or equity or those of any other jurisdiction, government or political subdivision thereof, similar to Section 1542 ( "Similar Provision "). Thus, no Party hereto may invoke the benefit of Section 1542 or any Similar Provision in order to prosecute or assert in any manner any claim released hereunder that arises from or relates to the IBC Vision Plan, the 1992 Entitlements and /or the 1992 Agreement. Section 1542 provides that: "a general 25B -11 release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially effected his settlement with the debtor. " Santa Ana Initials: Irvine initials: 7. Integration. This Agreement represents the entire understanding of the Parties hereto. No prior or contemporaneous oral or written understanding shall be of any force or effect with respect to those matters covered in this Agreement. This Agreement may not be altered, amended, or modified except by mutual consent of the Parties hereto through a written instrument. 8. California Law. This Agreement shall be construed and interpreted both as to its validity and as to the performance of the Parties in accordance with the laws of the State of California. 9. Execution and Counterparts. This Agreement may be executed and delivered in any number of counterparts or copies ( "Counterpart") by the Parties hereto. 10. Authority to Execute. Each person executing this Agreement on behalf of a Party-hereto warrant that he or she is duly authorized to execute this Agreement on behalf of said Party and that by so executing this Agreement, each Party formally binds itself to the provisions of this Agreement. Each person executing this Agreement further acknowledges that he or she has obtained all necessary and legally required approvals for entry into this Agreement from legislative or governing boards and that such legislative or governing board has adopted a resolution, motion, ordinance or other action pursuant to State law and its own bylaws or ordinances for approval of this Agreement. 11. Notices. Every notice, demand, request, annual report, or other document or instrument delivered pursuant to this Agreement shall be in writing and shall either be personally delivered, sent by Federal Express or other reputable over- night courier, sent by facsimile transmission with the original subsequently 25B -12 delivered by any other means authorized herein, or sent by certified United States mail, postage prepaid, return receipt requested, to the address set forth below for the applicable Party, or such other address as Parties may designate from time to time: To the City: City of Irvine City Hall One Civic Center Plaza P.O. Box 19575 Irvine, CA 92713 Attn: City Manager cc: Director of Community Development Director of Public Works Telephone: (714) 724 -6000 Fax: (714) 724 -6075 To the City: City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Attn: City Manager cc: Executive Director of Planning and Building Executive Director of Public Works Telephone: (714) 647 -6900 Fax: (714) 647 -6951 12. Severability. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 13. Amendment and Restatement: This Agreement amends and restates, and thereby supersedes in full, the 1992 Agreement. 25B -13 IN WITNESS WHEREOF, the Parties hereto have executed this Amendment To and Restatement Of the 1992 Agreement as set forth below. "Irvine" CITY OF IRV By: Sukhe6 Kang, MjWor APPROV A4 FORM: By: Philip D. k8hn City Attorney ATTEST: By: S SharieApodacfi City Clerk of the City of Irvine "Santa Ana" CITY OF SANTA ANA By: David N. Ream, City Manager APPROVED AS TO FORM: By: City Attorney ATTEST: By: Clerk of the Council, City of Santa Ana 25B -14 RELs 11/20/92 This Agreement for IMPLEMENTING ROADWAY AND INTERCHANGE MITIGATION PROGRAM ( "Agreement ") is made and entered into as of yCi . this *AY day of 1992 (the "Effective Date "), by and between the City of Irvine, a California charter city ( "Irvine ") and the City of Santa Ana, a California municipal corporation ( "Santa Ana") (collectively referred to as the "Parties ") . RBr„I TALS A. Irvine has certified Environmental Impact Report 88 -ER- 0087 (the "IBC SIR"), as adequate and complete and adopted General Plan Amendment No. 7234 -GA, and Zoning Amendment 88 -ZC -0135 .(collectively the "IBC Rezoning") to amend the land use designation and zoning in that portion of the. City known as the Irvine Business Complex (the "IBC "), more specifically defined as that area depicted on Exhibit "A," attached hereto and incorporated herein by this reference. B. The IBC EIR analyzes the IBC Rezoning and concludes that the mitigation measures contained therein will adequately accommodate the traffic impacts which are anticipated to be generated by the IBC Rezoning. C. Certain mitigation measures discussed in the IBC EIR and adopted as part of the IBC Rezoning are Roadway and Interchange Improvements which are to be constructed within the municipal boundaries of Santa Ana. F32%131 %0631740345\2022912.1 11130/92 1 EXHIBIT A 25B -15 .�l NOW, THEREFORE, in consideration of the mutual promisee and covenants contained herein, the Parties hereto agree as follows: 1. Limit on new develg &Mt in the IBC. The parties hereto agree and stipulate that, as of the date of this Agreement, Irvine has approximately 39,846,000 square feet of development within the IBC. Except as otherwise provided in this Agreement, Irvine agrees that it will not issue building permits fot development in the IBC which would cause the total development in the IBC (presently existing development- plus development occurring after the date of this Agreement) to exceed 51,000,000 square feet until after the following street improvements, located in the City of Santa Ana, have been completed: (a) The widening of Dyer Road to eight (8) lanes from a point commencing just east of the SR -55 freeway northbound direct connector on -ramp to and including the Redhill- Dyer/Barranca Avenue intersection', as provided in the IBC SIR mitigation measures (numbers l.a. and 2.p.) (the "Roadway Improvements "). (b) An Alton Avenue overcrossing of the SR -55 freeway with high occupancy vehicle northbound and southbound drop ramps, as provided in the IBC SIR mitigation measures (numbers l.d and 3.b.) (the "Interchange Improvements ") . Irvine further agrees that in the event that, notwithstanding Irvine's agreement to limit the issuance of building permits as abovesaid, the total development in the IBC does exceed 51,000,000 square feet prior to the completion of the Roadway Improvements and F=131%00170- R10A120229t2.1 11/20M 2 I the Interchange Improvements: (a) Irvine shall be liable to Santa Ana for Irvine's share of the Total Costs (as.defined in Section 2 hereinbelow) of the Interchange Improvements, to the extent such Total Costs remain outstanding, and shall pay such amount to Santa Ana. Any amounts received by Santa Ana pursuant to this paragraph for the Interchange Improvements shall be expended by Santa Ana in accordance with Section ,3 hereinbelow. (b) Irvine shall deposit the Total Costs (as defined in Section 2 hereinbelow) of the Roadway improvements, to the extent such Total Costs remain outstanding, in an interest bearing account in a financial institution acceptable to both.Irvine and Santa Ana. Irvine shall not withdraw any of the principal of such amount except in connection with the design and construction of the Roadway Improvements, including but not limited to alignment studies and any environmental documentation which may be necessary in addition to the IBC BIR, costs of land acquisition (including any costs incurred in any eminent domain action), costs of design and construction, and administrative staff costs related to the Roadway Improvements. Any and all interest earned on the amounts deposited in such account shall be paid to Santa Ana. Notwithstanding anything to the contrary in the IBC 33IR or in the environmental findings approved by Irvine in its approval of M% 131wunawos%2W9iz.i 11MM 3 25B -17 the IBC Rezoning, the parties hereto agree that the completion of the Roadway Improvements and the Interchange improvements in accordance with this Agreement (and subject to the exceptions set forth in this Agreement) are appropriate and necessary mitigation measures for the IBC Rezoning under the California Environmental Quality Act. 2. Responsibilities of the Patties. a. "Total Costs" defined. As used with reference to the Roadway Improvements and /or the Interchange Improvements, the term "Total Costs" means all costs incurred in the completion of those improvements, including, but not limited to, costs of preparation of alignment- studies and any environmental documentation which may be necessary in addition to the IBC SIR, costs of land acquisition (including any costs incurred in any eminent domain action), costs of design and construction, and administrative staff costs. b. "Lead Ag1kngy" defined. * As used herein, the term "Lead Agency" means the city (Irvine or Santa Ana) which is responsible for underta)4ng the work necessary to complete the Roadway Improvements and /or the Interchange Improvements, including, but not limited to, preparation of alignment studies and any environmental documentation which may be necessary in addition to the IBC SIR, land acquisition, and design and construction, either through its owa employees or through independent contractors, except as otherwise provided hereinbelow. C. Edina responsibilities. Irvine shall be M131MU7040M2022912.1 IuZ M 4 ee� 'responsible for 100* of the Total Costs of tiW AoadWy improvements, exclusive of any portion thereof as to which any governmental entity other than Santa Ana may assume xritpgnsibility. Irvine .and Santa Ana shall each be, reeponsU14,S09 SM a& tb* Total Costs of the Interchange Improvements, exclusive of any portion thereof as to which any governmental entity other than Irvine or Santa AXW S* r aftema ty. ; .batrein Wall be construed to restrict the ability of tither city -.air qbt#4A.tPr4X to most its funding responsibilities hereunder through the imposition of development fees or such other revenue measures as may be deemed appropriate by that city. i otherwise greyvided is b of Section 3 of tbie5 AG pros Ittt, Irvine shall be the Lead Agency for the Roadway . provided, however, that to the extent that Irvine is unable to acquire land necessary for the Roadway Zgprbvqments due to Irvine's inability to exercise powers of eminent domain iw time jurtsdicttion of the City of Santa Ana, Santa Ana shall aaM mr Lead'APAW responsibilities with respect to such land acquisition. Santa Ana shall be the Lead Agency with regard to the Interchange Improvements. All alignment and design planet and environmental documentation prepared by or on behalf of Irvine as head Agency r shall be subject to appran*al by Santa Ana, which app%vv* , obaU not be unreasonably withhold or delayed; providad,,zowwwar, that Santa- Ana may require all design plans to conto t 8nat;a Ang design standards in effect at the time such.ps ax* stted. i FMOM91 1s.t 11MM 5 G I : � Santa Ana shall indemnify, defend and hold Irvine, its councilmembers, officers, officials, employees, agents and representatives harmless from and against any and all actions, claims, demands, judgments, attorneys fees, costs, damage to persons or property, penalties, obligations, expenses -or liabilities that may be asserted or claimed by any person or entity arising out of the negligent acts or omissions-of Santa Ana in connection with the design, construction or maintenance of the Roadway Improvements or Intersection Improvements. . Irvine shall indemnify, defend and hold Santa Ana, its councilmembers, officers, officials, employees, agents and representatives harmless from and against any. and all actions, claims, demands, judgments, attorneys fees, costs, damage to persons or property, penalties, obligations, expenses . or liabilities that may be asserted or claimed by any person or entity arising out of the negligent acts or omissions of Irvine in connection with the design, construction or maintenance of the Roadway improvements or Intersection Improvements. e. Payment of costs. For any portion of Total Costs incurred by Santa Ana as Lead Agency, Irvine shall pay to Santa Ana Irvine's funding obligation for such costs, as determined pursuant to paragraph a of this section, as follows: Santa Ana shall invoice Irvine not more than once monthly for costs incurred since the previous invoice. Each invoice shall be accompanied by a'detailed statement of the nature of 'the costs incurred. Each proper invoice shall be paid by Irvine within thirty (30) days of Fm131wsI70- MOMM12.1 iron" 6 W_ , receipt. The parties agree to meet in good faith to resolve any dispute over any invoice or the need and necessity of any costs incurred. With regard to any action in eminent domain action undertaken by Santa Ana in the implementation of this Agreement, Santa Ana may require payments from Irvine \such times as Santa Ana determines to be appropriate to discharge its responsibilities in such action. The provisions of this paragraph may be modified and /or elaborated by the mutual agreement of the City Managers of Irvine and Santa-Ana. f. Ngnitoring of building permits. Irvine shall monitor-the extent of development authorized by the issuance of building permits in the -IBC and submit quarterly reports to Santa Ana commencing on or about the first week of January, 1993 (the "Quarterly Report ") . The Quarterly Report shall indicate the gross square feet of development authorized by building permits issued for development in the IBC. g. Coogeration. The parties hereto agree to cooperate in the implementation of this Agreement. In particular, but without limitation, Santa Ana and Irvine shall exercise good faith in cooperating with the California Department of Transportation ("Caltrans ") in negotiating and entering into all necessary cooperative agreements for the funding, design, and construction of the Interchange Improvements. 3. Payment by Irvine to Santa Ana of Irvine's share. a. The Inters ance Improvements. In the event that (1) Santa Ana does not have available funds necessary to FSZ131%013170-0005%2022912.1 1 1/20/92 25B -21 enable it to perform its funding obligation for the Interchange Improvements at such time as Irvine is prepared to provide funds for the completion of its funding obligations for the Interchange Improvements, or (2) Caltrans has not taken any and all actions required by it to permit the construction of the Interchange Improvements at such time as Irvine is, prepared to provide funds for the completion of its funding obligations for-the Interchange Improvements, the City Managers of Irvine and Santa Ana shall defer the construction of the Interchange Improvements to a mutually agreeable date; provided, however, that in the event the parties cannot mutually agree upon a deferred date, Irvine shall pay to Santa Ana the amount of its funding obligation for the Interchange Improvements, and Irvine shall thereupon be relieved of any further responsibility for the completion of the Interchange Improvements pursuant to Section 1 of this Agreement, and the completion of the Interchange Improvements shall no longer be condition precedent to the issuance of building permits for development in excess of 51,000,000 square feet in'the IBC. b. Amount of payments. The amount of the payment due to Santa Ana from Irvine pursuant to this Section shall be the estimated Total Cost of the Interchange improvements, to the extent of the work that remains to be done, at the time payment is made. C. Use of funds by sane Ana,. Any funds received by Santa Ana from Irvine pursuant to this Section for the Interchange Improvements shall be used for the completion of the Interchange Improvements. F=131%"$1704M2022912.1 11120/92 8 25B -22 4. Amendment of Santa Ana General Plan. Within two years of the execution of this Agreement, Santa Ana shall, if necessary„ take action to amend its General Plan to accommodate the Interchange Improvements contemplated by this Agreement. In the event of any litigation challenging the amendment of Santa Ana's general plan to accommodate the Interchange improvements, the abovesaid time period shall be extended for such time as may be necessary to resolve such litigation. Irvine shall not object to that portion of'the Santa Ana General Plan amendment relating to the Interchange Improvements. In the event that, after the expiration of the abovesaid time period, Santa Ana has not amended its General Plan to-accommodate the Interchange Improvements at such time as Irvine is prepared to provide funds for the completion of its funding obligations for the Interchange Improvements, then the completion of the Interchange Improvements shall no longer be a condition precedent to the issuance of building permits for development in excess of 51,000,000 square feet in the IBC. Unless and until Santa Ana amends its General Plan to accommodate the Interchange Improvements, or certifies to Irvine that the Santa Ana General Plan accommodates the Interchange Improvements, Irvine shall have no obligation to fund the Interchange Improvements. Within two years of the execution of this Agreement, Santa Ana shall take an action to amend its General Plan to accommodate the Roadway improvement contemplated by this Agreement. In the event of any litigation challenging the amendment of Santa FM1311OU1704 3WN202"12.1 1112ONZ 25B -23 Aria's general plan to accommodate the Roadway Improvement, the abovesaid time period shall be extended for such time as may be necessary to resolve such litigation. Irvine shall not object to that portion of the Santa Ana General Plan amendment relating to the Roadway Improvements or to any Santa Ana General Plan designation of any portion of Dyer Road outside of the area of the Roadway Improvements adopted to effectuate this Agreement. In the event that, after the expiration of the abovesaid time period, Santa Ana has not amended its General Plan to acdommodate the Roadway Improvements at such time as Irvine is prepared to acquire land for the Roadway Improvements, then Irvine shall no longer have any obligation •under this Agreement to construct or fund the Roadway Improvements. S. Participation in Five-City-Study. Irvine shall not request Santa Ana's participation in the Five -City study referenced in IBC EIR Condition No. 8 and IBC Mitigation Monitoring and Reporting Checklist Mitigation Measure No. 7A. 6. Payment for Main Street Widening. Irvine shall not request that Santa Ana contribute any funds whatsoever for the widening of Main Street to six (6) lanes between Sunflower Avenue and San Diego'Creek. 7. Covenant Not to Sue. Each Party, and its respective agents, officers, employees, representatives and assigns hereby agrees and covenants that this Agreement forever satisfies any past, present, or future FMIMOU170- MM2022912.1 1112M 10 25B -24 claims which the Party, and its agents, officers, employees, representatives or assigns had, has or may have against the other Party or its agents, officers, employees, representatives, and assigns arising out of the IBC Rezoning and /or the preparation and certification of the IBC EIR. As a result, each Party hereto covenants not to file any future legal actions of whatever kind or nature against the other Party regarding any claim in connection with the IBC Rezoning or the IBC EIR whether such claim is known or unknown, suspected or unsuspected, fixed or contingent. 8. Waiver of Civil Code Section 1542. Each of the Parties hereto expressly waives any and all rights under Section 1542 of the California Civil Code or any Federal or State statutory right, rules or principles of common law or equity or those of any other jurisdiction, government or political subdivision thereof, similar to Civil Code Section 1542 (hereinaftek referred to "Similar Provision *) . Thus, no Party hereto may invoke the benefit of Section 1542 or any Similar Provision in order to prosecute or assert in any manner any claim released hereunder. Section 1542 provides that: "a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially effected his settlement with the debtor.,, 9. Inte ration. This Agreement represents the entire understanding of the Parties hereto. No prior or contemporaneous oral or written M)311048170- MN2022912.) iinan 11 25B -25 understanding shall be of any force or effect with respect to those matters covered in this Agreement. This Agreement 'may not be altered, amended, or modified except by mutual consent of the Parties hereto through a written instrument. 10. Attorneys Fees. In the event that any Party hereto should bring any action, suit or other proceeding to remedy, prevent, or obtain relief from a breach of this Agreement or arising out of a breach of this Agreement, or contesting the validity of this Agreement or attempting to rescind, negate, modify, or reform this Agreement, or any of the terms or provisions of this Agreement, the prevailing Party* shall recover from such Party those reasonable attorneys fees and costs, including expert fees, incurred in each and every such action, suit, or other proceeding, including any and all appeals or petitions therefrom. 11. galifornia Law. This Agreement shall be construed and interpreted both as to validity and performance of the Parties in accordance with the laws of the State of California. 12. 8xecutign and Counterparts. This Agreement may be executed-and delivered in any number of counterparts or copies ( "Counterpart ") by the Parties hereto. 13. Auth2rity to Execute. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute FSZ131%001704305%=917.1 1IMM 12 I 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. Each person further acknowledges that he or she has obtained all necessary and legally required approvals for entry into this Agreement from legislative or governing boards and that it has adopted a resolution, motion, ordinance or other action pursuant to State law and its own bylaws or ordinances for approval of this Agreement. 14. N2XISBS. Every notice, demand, request, or other document or instrument delivered pursuant to this Agreement shall be in writing and shall either be personally delivered, sent by Federal Express or other reputable over -night courier, sent by facsimile transmission with the original subsequently delivered by any other means authorized herein, or sent by certified United States mail, postage prepaid, return receipt requested, to the address set forth below for the applicable Party, or such other address as Parties may designate from time to time: To the City: City of Irvine City Hall One Civic Center Plaza P.O. Box 19575 Irvine, CA 92713 Attn: City Manager cc: Director of Community Development Telephone: (714) 724 -6000 Fax: (714) 724 -6075 F32%J 3 1 1 43 17M05120M912.1 I I /20M 25B -27 To the City: City of Santa Ana 20 Civic Center Plaza P.O. Box•1988 Santa Ana, CA 92702 Attn: City Manager cc: Executive Director of Planning and Building Telephone: (714) 647 -6900 Fax: (714) 647 -6951 15. Severability clause. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date appearing next to their signatures. Dated: ITTI� �' CITY OF SANTA ANA ATTEST: , by Dan H. Young Mayor ice C. Guy Clerk of the Council APPROVED AS/�TO FORM: /�/Jf�`D...._ Edwar J' Cdapdr City Attorney Dated: 11-2-61— 92- ATTEST: lerk the CoungAl CITY OF IRVINE by ZLGi.% C���tl1 Mayor jtrV Approved as to content _l City Manager iiaar� 14 �� REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: AGREEMENT FOR RIGHT -OF -WAY APPRAISAL SERVICES FOR CIP PROJECTS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1' Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached right -of -way agreements for real property, furniture /fixtures and equipment, and business goodwill appraisal services, subject to nonsubstantive changes approved by the City Manager and City Attorney with: • Kiley & Company for real property appraisal services in the amount of $150,000. • Desmond Marcello & Amster LLC and Donna Desmond Associates for furniture, fixtures, and equipment, and business goodwill appraisal services for an aggregate amount not to exceed $300,000. 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 (CIPs). 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 appraisal services was sent to 15 firms who specialized in this field. A special effort was made to reach out to Santa Ana firms. Nine proposals were received. 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. Following is the list of the firms and their respective scores: 25C -1 Agreement for Right -of -Way Appraisal Services for CIP Projects March 21, 2011 Page 2 Real Property Appraisal Services Overland Pacific Cutler 77 Hennessey & Hennessy 87 Lidgard and Associates 89 Kiley & Company 91 FF &E Appraisal Services Crocket 80 Hodges & Lacy 82 DMA 87 Business Goodwill Appraisal Services Donna Desmond 87 DMA 89 Based on the ratings and their experience with the City, staff recommends that the firms of Kiley & Company, DMA, and Donna Desmond be retained for appraisal services. All of these firms have been assisting the City with right -of -way services 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. Raul Godinez II Executive Director Public Works Agency RG /SA APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez (� Executive Director Finance & Management Services Agency 25C -2 Agreement for Right -of -Way Appraisal Services for CIP Projects March 21, 2011 Page 3 Exhibit 1: Agreements 25C -3 25C -4 Exhibit 1 Agreements 25C -5 25C -6 PROPERTY APPRAISAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 21St day of March, 2011, by and between KILEY COMPANY, 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 real property appraisal 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. 25C -7 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 under this Agreement shall not exceed $150,000, 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. 25C -8 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 combined single limit. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. 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 25C -9 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) 25C -10 P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647 -6515 To Consultant: Kiley Company 2681 Dow Avenue, Suite E Tustin, California 92780 facsimile 714 - 665 -6514 Attn: Elizabeth M. Kiley 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 25C -11 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. 25C -12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director — PWA 25C -13 CITY OF SANTA ANA DAVID N. REAM City Manager KILEY COMPANY ELIZABETH M. KILEY President Tax ID# 25C -14 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. 25C -15 • 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 real property appraisal services includes: Consultant will provide appraisal services that include full and part take of residential property; commercial property; industrial property; easements; special use or zoned property; furniture, fixtures and equipment appraisals; review appraisals; and goodwill valuation. Appraisal Services shall be in accordance federal, state, and local regulations, policies, procedures and standards. Appraiser may perform the following tasks: • Real Estate Appraisals (full and partial takes) • Preparation of Appraisal Summary Statements to accompany City's Offer documents • Valuation of Agency's Landscape Setback requirements • Preparation of a detailed appraisal necessary for condemnation • Coordination with Fixtures and Equipment Appraisers • Coordination with Business Goodwill Appraisers • Communication with property owners • Prepare all necessary correspondence, letters and reports • Provide effective communication with engineers, planners, attorneys, and City staff • Comply with federal, state and local regulations • Create files and maintain all records • Provide condemnation consultations • Attend meetings /public hearings and conduct presentations 25C -16 • Provide expert witness testimony • Coordinate and review of Phase I and Phase II Environmental Studies • Obtain appraisals for each acquisition prepared in accordance with the State of California Laws and USPAP. • Review appraisal report and prepare an Appraisal Summary Statement. Review Appraisals (Required For Federally Funded Projects) Coordinate, direct and obtain review appraisals in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act (Uniform Act) and Caltrans guidelines. Examine all appraisals and corresponding reports Seek any corrections or revisions deemed appropriate. 25C -17 25C -18 EXHIBIT A -1 CONSULTANT'S PROPOSAL 25C -19 •-d Project Organization Elizabeth M. Kiley, MAI PRESIDENT CERTIFIED GENERAL REAL ESTA TEA PPRA ISER Sarah A. Phillips OFFICE MANAGER yr `'" Stephanie L. Kavanaugh �. CERTIFIED GENERAL REAL ES TA TE A PPRA ISER ra Meredith McDonald CERTIFIED GENERAL REAL ES TA TEAPPRAISER a� Maria Olson CERTIFIED GENERAL REAL ESTATE'APPRAISER wr Mark A. Demkiw CERTIFIED GENERAL es REAL ES TATEAPPRAISER. ab b'd Steven Botts CERTIFIED RESIDENTIAL a�. REAL ESTATEAPPRAISER e. Christine S. Santolucito REAL ESTATE TRAI (EE APPRAISER �.. KiL���L Page 6 m D. a.. Work Plan We have reviewed the RFP and understand that the City of Santa Ana is seeking to establish a team of consultants for various specialty areas related to right of way projects. We would like to be considered for Specialty Area: (A2) Real Property Appraisal Services. We are confident in our ability to deliver complete and accurate appraisals, with individual assignment details being given on an as- needed basis. As outlined in the Scope of Work for Specialty Area (A2), we will be able to perform the following tasks: • Real Estate Appraisals for full and partial takes • Prepare Appraisal Summary Statements • Evaluate Agency's Landscape Setback requirements • Prepare detailed appraisals or consultations for condemnation appraisals • Coordination with Fixtures and Equipment Appraisers • Coordination with Business Goodwill Appraisers • Prepare all necessary correspondence, letters and reports • Provide effective communication with all parties involved in transaction • Comply with federal, state and local regulations • Attend meetings /public hearings and conduct presentations • Provide expert witness testimony • Coordinate and review of Phase I and Phase II Environmental Studies • Review appraisals completed by other appraisers • Coordinate, direct and obtain review appraisals in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act (Uniform Act) and Caltrans guidelines • Seek any corrections or revisions deemed appropriate 25C -21 Page 7 Each appraisal request is unique, but most require the standard appraisal methodology established bythe Appraisal Institute. Regulations and guidelines for the preparation of appraisal reports will be followed. Each report will be: °•' Written by an appraiser that is licenced and certified as required by the State of California; iv • Made in compliance with Uniform Standards of Professional tw Appraisal Practice, The Code of Professional Ethics, the Standards .w f,• of Professional Practice of the Appraisal Institute, Eminent Domain Laws, State and Federal Uniform Relocation Assistance and Real Prop erty'Acquisition Policies, Caltrans Right of Way Manual Chapter 7, and any other appropriate regulations as applicable; • Completed with an Appraisal Summary Statement with attachments that conform to the requirements of California Government Code, Section 7267.2; and aw • Completed with a description of all real property items, pertinent property data, date of value, discussions of highest and best use, narrative explanation of approaches to value, summary and r., tabulation of market data, analysis of market data, and conclusions of value, including severance damages and benefits, if applicable. 4w All assignments will be completed under a comprehensive internal project management framework which ensures the highest quality analysis, client communication, and on -time delivery. All assignments are reviewed by the principal throughout the project to ensure vy a appropriate valuation practices. We will maintain work files with all information gathered during °sY the assignment and will submit them to the City on request. "� Ki t1JOitj2i'i)' Page 8 c� low FA fm r.. XW -M w 4W 7'H LM OW The generic framework for appraisals is as follows: • Receipt of authorization • Review of scope of work by principal and appraiser • Review of material received by principal and appraiser • Clarification of any questions with client by principal and appraiser • Letter of Intent to Appraise by principal and appraiser • Collection of market data by principal and appraiser Inspection of subject property by principal and appraiser • Inspection of comparable sales data by appraiser • Description of property and project by principal and appraiser • Determination of highest and best use by principal and appraiser • Develop approaches to value by principal and appraiser • Reconciliation of approaches to value by principal and appraiser • Part Takes ° Review of damages and special benefits by principal and appraiser Consideration of existing easements by principal and appraiser ° Appraisal of the after value by principal and appraiser Valuation of any TCE by principal and appraiser Conclusion and compensation by principal and appraiser • Communicate findings to client by principal and appraiser • Attendance of any meetings during project by principal and appraiser KiNeLny Page 9 All 7T07 7'17 �1T 7� Project Schedule Although approximate, our schedule usually proceeds as listed below. For appraisals that require completion within a shorter time period; adjustments can be made to complete the appraisal within a shorter time frame. • Receipt of authorization to proceed • First week - market research and preliminary analysis • Second week - site inspections • Third week - analysis and valuation report write -up • Fourth week- report preparation, completion, and deliveryto client Error -Free SLI missions With over 20 years in operation and a team of seven appraisers, The Kiley Company is excellent at meeting deadlines. Additionally, quality control is always a priority and involves a multi level process: • Principal involvement throughout the appraisal process, including: determination of the scope of work, comparable sales selection, meetings, analysis, and conclusions • All reports are sent to outside, professional proof readers • All reports are read and reviewed in detail by principal prior to delivery KU26,Cnp Page 10 I Prpjects Back to Schedule With over 20 years of appraisal project management experience, The Kiley Company operation and format generally prevent delays from our firm. However, general project delays or changes can occur. Our mid -sized organization provides direct communication with the principal who can instantly problem solve and redirect staff if necessary. Additional staff is available to support if time oi- issues require. We have a clear advantage over the single practitioner who may not be able to add staff to fast track or redirect projects. Client service is ♦,e always a priority. Strengths as Appraisers �• As a local business that has been in the Irvine/Tustin area for over 20 years, The Kiley A .a ns Company is extremely familiar with the Southern California area. The Kiley Company team is also able to confidently take on various types of appraisals, ranging from smaller assignments to larger and more complicated assignments due to the level of experience of our principal appraiser, Elizabeth M. Kiley, MAI. She and her team have completed a wide range of valuations for acquisition and right -of -way services and feel comfortable managing multiple assignments concurrently. Our particular strengths include, but are not limited to. • Experience - 20 years of business in Orange County • Expertise - MAI, and State Certified General Designations • Quality - Established project management and quality control • Delivery - Licensed appraisal staff to complete projects on time • Communication - Principal is active in all assignments • Cost - Efficiency of organization provides cost savings to client M Ktle�,r-�r�► Page 31 25C -26 EXHIBIT B FEE SCHEDULE 25C -27 ..q VW K� bA a+ ki0 Go fts aN 09 Price Proposal Each appraisal assignment is unique and our fees are on a fixed price basis determined by the complexity of each individual assignment, We will provide a bid for each individual assignment based on the scope of work for that specific project or property at the time of request, Changes to the fixed prices only occur as a result of client initiated changes in the scope of work. To get an idea of our fee schedule, our hourly rates for real property appraisal and consulting services are as follows, with rush requests requiring overtime being billed at one and one-half times our regular rates: Certified General Real Estate Appraiser President Certified General Real Estate Appraiser Certified Residential Real Estate Appraiser Real Estate Trainee Appraiser Office Manager /Administrative Staff $200 for Appraisal $450 for Expert Witness Testimony and Court Related Meetings Please also see the attached forms included in the RFP. $90 for Appraisal Services $90 for Appraisal Services $80 for Appraisal Services $60 for Administrative Duties 25028 page 12 Right of Way Consulting and Related Services PRICE SUMMARY SHEET „r SCHEDULE I -- HOURLY RATES to rte. —0 a,. (j cm t Ca vw e;v A� EXHIBIT,B Page 1 of 1 Name Job Title/ Classification Job Function Fully Burdened Hourly Rate tiZabe�V. M.1�► pres;dev -cc �1� � cac�ral evi �D� Ste lnani� �avara Y'' C r I -A rcki %O k D tow arr✓ 'W C " -ed 00/ raf vat \ i> (� o."t Mon r ed Caewaf 0 ev ours �eSiC Qriia \ �'$0 evw sm-fl t &y\'%6akt-ryCL(aU er Gt \ YC 1 ��1 i 11� lix M0.v�Q i n i Q U0 Fully ouruu1mu rates mciuue an overneaa, general costs, aaministration costs and profit. 25C -29 Page 36 of 36 25C -30 APPRAISAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 21" day of March, 2011, by and between DESMOND, MARCELLO & AMSTER, LLC (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 business goodwill, and furniture, fixtures and equipment appraisal 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 — Business Goodwill Appraisal Services, attached hereto as Exhibit A -1, and Consultant's Proposal — Furniture, Fixtures & Equipment Appraisal Services, attached hereto as Exhibit A -2. All exhibits are 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 25C -31 royalty -free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 3. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its Goodwill Appraisal services, the rates and charges identified in Consultant's Fee Schedule — Goodwill Appraisals, attached hereto as Exhibit B -1. City shall pay, and Consultant agrees to accept as total payment for Furniture, Fixture and Equipment Appraisal services, the rates and charges set forth in Exhibit B -2, attached hereto. The total sum to be expended among all consultants providing goodwill and /or furniture, fixture and equipment appraisal services shall not exceed an aggregate of $300,000, 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 25C -32 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 $2,000,000 combined single limit. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. 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, 25C -33 by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 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: Public Works — Design Engineering City of Santa Ana 20 Civic Center Plaza (M -36) P.O. Box 1988 25C -34 Santa Ana, California 92702 facsimile (714) 647 -5635 and City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647 -6515 To Consultant: Desmond, Marcello & Amster, LLC 6060 Center Drive, Suite 825 Los Angeles, California 90045 facsimile (310) 216 -0800 Attn: Aaron D. Amster 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 25C -35 compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. However, any use of unfinished work product shall be at City's sole risk. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 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. 25C -36 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director — PWA 25C -37 CITY OF SANTA ANA DAVID N. REAM City Manager DESMOND, MARCELLO & AMSTER, LLC AARON D. AMSTER Senior Partner Tax ID# 25C -38 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. 25C -39 • 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 BUSINESS GOODWILL APPRAISAL SERVICES includes: Consultant services will include providing: Budgetary Estimates of Goodwill Loss Budgetary estimates are used by public agencies in planning and preparing a project budget. Consultant's estimates of goodwill loss will be based upon a "drive by" site inspection of the subject businesses, limited market research, and any publicly available data. In addition, these estimates will take into consideration Consultant's experience in preparing goodwill loss appraisals of comparable businesses, as well as our knowledge of relevant statutes and case law, negotiated settlements and jury awards in eminent domain proceedings. Consultant's results will be presented in a brief letter. Goodwill Loss Acquisition Appraisals During the early stages of property acquisition, Consultant can provide preliminary estimates of goodwill loss. Acquisition appraisals are based upon data, which may be provided by the business' ownership at its discretion. Such information may include: leases; background on the business provided via owner /management interviews; historical and prospective financial data; and information about proposed relocation sites. In addition, Consultant shall perform basic transactional research in light of our understanding of the business' operations and financial condition. Consultant will also coordinate with real estate and fixtures and equipment appraisers to avoid duplication of 25C -40 compensation. Further, Consultant's analyses will be guided by relevant statutory and case law pertaining to compensation for loss of goodwill. The result of each acquisition appraisal study is presented in a brief report with attached schedules. Included within this document are the purpose of the assignment, the sources of information utilized, a brief description of the subject business and the valuation methods employed. Consultant will note any assumptions made in performing the analysis, as well as all information requested from the business' ownership, but not received, which, upon review by Consultant, may have an impact on the value conclusion. Specific Scope of Work for FURNITURE, FIXTURES AND EQUIPMENT APPRAISAL SERVICES includes: Consultant services will include providing: Budgetary Estimates of Fixtures and Equipment Values Budgetary estimates are used by public agencies in planning and preparing a project budget. Consultant's estimates of fixtures and equipment values will be based upon a "drive by" site inspection of the subject businesses, limited market research, and any publicly available data. In addition, the estimates take into consideration Consultant's experience in preparing fixtures and equipment appraisals of comparable businesses, as well as our knowledge of relevant statutes and case law, negotiated settlements and jury awards in eminent domain proceedings. Consultant's results will be presented in a brief letter. Fixtures and Equipment Appraisals Consultant will provide a fully contained appraisal report, in triplicate, of the improvements pertaining to the realty and major movable equipment of each business appraised. The report will include an estimate of the fair market value in place and liquidation value of all appropriate items and will be prepared in conformance with Article 3 of the California Code of Civil Procedure, Sections 1263.205 and 1263.210. (Compensation for losses in connection with movable personal property is included in the California Code of Regulations, Title 25, Sections 6090 and 6092.) Appraisal procedures will be guided by the Uniform Standards of Professional Appraisal Practice (USPAP). In preparing each comprehensive appraisal, Consultant will: inspect the business' facility; prepare an inventory of the improvements pertaining to the realty and major movable equipment; coordinate appraisal activities with the real estate appraiser to avoid duplication of compensation; interview the business' owner /manager regarding the business' history, operations and tangible assets owned; and utilize generally accepted valuation methodology to determine the fair market value in place and liquidation value of the appropriate items owned by the business. Furniture, Fixtures and Equipment Appraisals tasks may include: • Inspect the business facility. • Prepare separate inventories for the Fixtures & Immovable Equipment and Movable Personal Property. 25C -41 Coordinate appraisal activities with the real estate appraiser to avoid duplication of compensation Interview the business owner regarding the history, operation and tangible assets owned. Prepare report utilizing accepted valuation methodology to estimate the replacement cost new, fair market value in place and salvage value of the appropriate items owned by each business operation. 25C -42 EXHIBIT A -1 CONSULTANT'S PROPOSAL GOODWILL APPRAISAL SERVICES 25C -43 S. Prolect Organization Chart Aaron Amster Sr. Partner Project Manager Eric Lietzow Sr. Manager 6. Key Personnel Statement Appraisal Projact Teams Organization Chart Loss of Goodwill Appraisal Madeleine Mamaux Partner Project Manager Diane Christensen Manager Ricardo Gofii Sr. Manager Project Manager Kevin Blair Sr. Analyst , Key personnel will be available to the extent proposed for the duration of the project. No person designated as "key" to the project shall be removed or replaced without the prior written concurrence of the City. Is 25C -44 C. WORK PLAN 1. Approach to Scope of Work DM &A's appraisal specialty, business goodwill valuation, is a vital component of any acquisition project. Our approach to the appraisal process is thorough, collaborative, and professional. Our appraisers recognize the importance of a detailed approach to any assignment, and are cognizant of our role as representing our clients. Our professionals have extensive experience interviewing business owners, and make efforts to address their concerns and needs in these meetings. DM &A has bilingual professionals to interface with Spanish - speaking business owners. We work closely with agency staff and their attorneys in order to keep all parties apprised of the status of our appraisal projects. The firm can assist the City with the following key services. Budgetary Estimates DM &A can assist in the planning phase of a project by preparing budgetary goodwill loss estimates. These estimates are based upon limited site inspections of the subject businesses, access to any publicly available data, limited transactional research, and our extensive experience in valuing comparable businesses and in negotiated settlements and jury awards in eminent domain proceedings. This analysis does not include management interviews, review and analysis of historical and prospective financial records, nor in depth industry and market research. Accordingly, the conclusions are highly preliminary and inappropriate for settlement 16 25C -45 negotiations. The preliminary estimates are solely suitable for budgetary purposes. Budgetary estimates can generally be completed within 20 to 30 days. Acquisition Appraisals DM &A's acquisition appraisals are based upon data which may be provided by the business' ownership at its discretion. Such information may include leases, background on the business provided via owner /management interviews, historical and prospective financial data, and information about proposed relocation sites. In addition, DM &A will perform basic transactional research in light of our understanding of the business' operations and financial condition. DM &A will also coordinate with real estate and fixtures and equipment appraisers to avoid duplication of compensation. Further, DM &A's analyses will be guided by relevant statutory and case law pertaining to compensation for loss of goodwill. The result of each acquisition appraisal study is presented in a brief report with attached schedules. Included within this document are the purpose of the assignment, the sources of information utilized, a brief description of the subject business and the valuation methods employed. DM &A will note any assumptions made in performing the analysis, as well as all information requested from the business' ownership, but not received, which, upon review by DM &A, may have an impact on the value conclusion. Litigation Support DM &A is available to provide litigation support services to the City regarding any business affected by the types of projects outlined above. These services would include, but are not 17 25C -46 limited to, aiding attorneys in the discovery process, reviewing opposing expert appraisals, and testifying at deposition and/or trial. 2. Sequential Outline DM &A's work will encompass steps including, but not limited to, the following; + Review and analysis of financial statements of the subject business, including internal income statements and balance sheets as well as tax returns; • Interviews with the owners and /or managers of the subject business. Such interviews are intended to provide DM &A with a thorough understanding of the business' products, operations, management, employees, marketing, competition, and industry, as well as an understanding of recent financial trends and outlook; • Site and area inspections of both the subject location and the business' relocation site, if applicable; • Review of leases and other contracts pertinent to the business' operations; • Coordination with other professionals, such as fixtures and equipment appraisers, real estate appraisers, and relocation consultants, to avoid duplication of compensation; • Independent research in the business' industry and the economic factors affecting the business; 18 25C -47 • Research into the marketplace for sales of businesses similar to the subject; • Investigation of the impact of the taking and/or of relocation, if applicable, on the business' revenues and profits in the "after" condition; and • Implementation of valuation methods, such as the Income Approach and Market Approach, to determine the value of the business' goodwill in both the before condition and in the after condition. 3. Proiect Schedule The schedule for completion of a business goodwill appraisal can vary widely depending upon the complexity of the business appraised and the degree of cooperation from the business' ownership. It is our experience that, assuming full and timely cooperation from all parties, an appraisal can be completed within 30 days of a client's authorization to proceed. DM &A actively communicates project status with clients via email, conference calls, or any other means preferred by the client. To the extent any data or information necessary for an appraisal is not forthcoming, we will notify City officials in a timely manner such that steps can be taken to obtain the necessary data. Budgetary estimates can generally be completed within 15 to 20 days. 4. Quality, Budget and Schedule Control Our collaborative business approach allows DM &A to have a level of quality control and responsiveness that is unique in our market. DM &A's appraisal review process is thorough and involves oversight by firm partners. Budgets and schedules are closely monitored, and 19 25C -48 appropriate management controls have been implemented to maximize employee productivity. DM &A's delivery record of projects on time and within budget is evidence of the firm's superior quality control. 5. Special Issues DM &A has not identified any special issues at this time. 6. Proposed Enhancements To the extent that DM &A finds any avenues to enhance efficiency, quality and/or responsiveness, we will pass along such ideas to the City during the course of the Project. 2© 25C -49 25C -50 EXHIBIT A -2 CONSULTANT'S PROPOSAL FURNITURE, FIXTURE AND EQUIPMENT APPRAISAL SERVICES 25C -51 5 Project Organization Chart Appraisal Project Team Organization Chart Aaron Amster Madeleine 5lamaux Wesley Nutten Sr. Partner Partner Partner Project Manager Project Manager ProjectNtanager Ricardo Goili Marcus Pigrom Sr. Manager Sr. Manager Project Manager Project Manager Eric Lietzow Diane Christensen Kevin Blair Sr. Manager Manager Sr. Analyst 6 Key Personnel Statement Key personnel will be available to the extent proposed for the duration of the project. No person designated as "key" to the project shall be removed or replaced without the prior written concurrence of the City. Is 25C -52 C. WORK PLAN 1 Approach to Scone of Work DM &A's appraisal specialty, furniture, fixtures and equipment valuation, is a vital component of any acquisition project. Our approach to the appraisal process is thorough, collaborative, and professional. Our appraisers recognize the importance of a detailed approach to any assignment, and are cognizant of our role as representing our clients. Our professionals have extensive experience interviewing business owners, and make efforts to address their concerns and needs in these meetings. DM &A has bilingual professionals to interface with Spanish - speaking business owners. We work closely with agency staff and their attorneys in order to keep all parties apprised of the status of our appraisal projects. The firm can assist the City with the following key services. Budgetary Estimates DM &A can assist in the project planning phase by preparing budgetary fixtures and equipment estimates. These estimates are based upon limited site inspections and our experience in valuing comparable businesses. This type of analysis does not include detailed inventory of fixtures and equipment or in -depth market and cost research. Accordingly, the conclusions are highly preliminary and inappropriate for settlement negotiations. The preliminary estimates are solely suitable for budgetary purposes. 19 25C -53 Comprehensive Appraisals In providing furniture, fixtures and equipment appraisal services to the City, DM &A will perform the necessary research, investigation, and analysis to provide written appraisal reports in compliance with the-standards of the Uniform Standards of Professional Appraisal Practice (USPAP), the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and Public Law 91 -646 (the Uniform Act) as they pertain to fixtures and equipment valuations. The appraisals we provide can be used for settlement negotiations and are appropriate for legal exchange. In addition, DM &A's fixtures and equipment specialist has experience in providing testimony in depositions regarding conclusions of value. DM &A can provide litigation support functions related to fixtures and equipment matters, such as assistance in discovery, reviewing other appraisals, and preparing direct and rebuttal testimony. 2 Sequential Outline DM &A's work will encompass steps including, but not limited to, the following: • Communications with City management to ascertain the scope of the assignment; o Coordination with relocation agents, acquisition agents and attorneys; • Scheduling a site inspection convenient to the business' owners and management; 20 25C -54 • Preparing a complete inventory of the assets at the subject business location. This inventory includes a description of the assets as well as observation of their age, condition, and method of installation, if any; • Review of any documentation pertaining to the assets provided by the business owner and/or manager, such as invoices, depreciation schedules, and construction contracts; • Interviewing business owners and /or managers; • Researching the marketplace for each of the assets identified on -site. Such research includes reference to a variety of publications as well as discussions with individuals knowledgeable about the market for the assets; • Coordinating with other appraisers to avoid duplication of compensation; • Applying valuation methods including the Market Approach and Cost Approach to the subject assets; and • Preparing the appraisal report for submission. 3 Proiect Schedule The schedule for completion of a fixtures and equipment appraisal can vary widely depending upon the complexity of the business appraised and the degree of cooperation from the business' 01 25C -55 ownership. It is our experience that, assuming full and timely cooperation from all parties, an appraisal can be completed within 30 days of a client's authorization to proceed. DM &A actively communicates project status with clients via email; conference calls, or any other means preferred by the client. To the extent any data or information necessary for an appraisal is not forthcoming, we will notify City officials in a timely manner such that steps can be taken to obtain the necessary data. Budgetary estimates can generally be completed within 20 to 30 days. 4 Ouality, Budget and Schedule Control Our collaborative business approach allows DM &A to have a level of quality control and responsiveness that is unique in our market. DM &A's appraisal review process is thorough and involves oversight by firm partners. Budgets and schedules are closely monitored, and appropriate management controls have been implemented to maximize employee productivity. DM &A's delivery record of projects on time and within budget is evidence of the firm's superior quality control. 1 S. Special Issues DM &A has not identified any special issues at this time. b Proposed Enhancements To the extent that DM &A finds any avenues to enhance efficiency, quality and /or responsiveness, we will pass along such ideas to the City during the course of the Project. n 22 25C -56 EXHIBIT B -1 FEE SCHEDULE GOODWILL APPRAISAL SERVICES 25C -57 . - E. COST AND PRICE PROPOSAL Pricine Detail — Business Goodwill Atmraisal DM &A does not analyze individual work tasks separately for proposal pricing. The bulk of the time spent typically involves financial analysis, research, and valuation analysis tasks. The amount of time spent on review also varies by assignment. DM &A's services are very business /tenant specific. Meaningful fee estimates cannot be given without knowing the types of businesses for which our services may be needed. Therefore we have provided business type information in the average cost estimates below and assumed "typical" situations. Summary Report Appraiser Ave. Rate + Project Mgr. Ave. Rate = Avera a Cost Estimate Project Manager Average Cost Business Type* Appraiser Average Rate Average Rate Estimate Small Retail & Services 19 hrs. $175 = $3,325.00 8 hrs. $275 = $2,200 $5,525 Restaurants/Bars 21.5 hrs. @ $175 = $3,762.50 10 hrs. @ $275 = $2,750 $6,513 Independent Wholesale/Manufacturing 27 hrs. @ $175 = $4,725.00 12 hrs. @ $275 = $3,300 $8,025 Gasoline Stations (may include convenience stores, auto repair, 2 1.5 hrs. @ $175 = $3,762.50 10 hrs. @ $275 = $2,750 $6,513 and car wash c.wi $a irut uu irwiusive qj possiote ousiness types. DM &A will not submit claims for reimbursement of mileage, overtime, travel costs or ordinary " costs incurred in the appraisal process. However, reimbursable expenses may be incurred during litigation, and may include preparation of trial exhibits. 22 25C -58 EXHIBIT A Page 1 of -1 Right of Way Consulting and Related Services PART I -- LIST OF KEY PERSONNEL Names Functions _ Aaron Amster Madeleine Mamaux Pro'ect manacrer PART 11— LIST OF SUBCONSULTANT /SUBCONTRACTORS E Subcontractor Name /Address Function None 25C -59 Page 35 of 36 EXHIBIT B Page 1 of 1 Right of Way Consulting and Related Services PRICE SUMMARY SHEET SCHEDULE I -- HOURLY RATES court/ Standard DeDo Name Job Title/ Classification Job Function Fully Burdened Hourly Rate* Aaron Amster Sr. Partner ,Project Manager 295 400 Madeleine Mamaux Partner Project Manager 250 350 r Ully DUFUCIMU fdLU5 incivae aii overneaa, general costs, administration costs and profit. Page 36 of 36 25C -60 EXHIBIT B -2 FEE PROPOSAL FURNITURE, FIXTURE AND EQUIPMENT APPRAISAL SERVICES 25C -61 E. COST AND PRICE PROPOSAL Prieine Detail — Fixtures and Equipment Appraisal DM &A does not analyze individual work tasks separately for proposal pricing. The bulk 6f the time spent typically involves inventorying relevant items and valuation research. The amount of time spent on review also varies by assignment. DM &A's services are very business /tenant specific. Meaningful fee estimates cannot be given without knowing the types of businesses for which our services may be needed. Therefore we have provided business type information in the average cost estimates below and assumed "typical" situations. Summary Report Average Typical Hours Project Manager Cost Business Type* Required Rate Estimate Small Retail & Services 16 $150 $2,400 Restaurants/Bars 25 $150 $3,750 Independent Wholesale/Manufacturing 40 $150 $6,000 Gasoline Stations (may include convenience stores, 36 $150 $5,400 auto repair, and car wash) cast is nut au inctusive oJpossrate Dusiness types. DM &A will not submit claims for reimbursement of mileage, overtime, travel costs or ordinary costs incurred in the appraisal process. However, reimbursable expenses may be incurred during litigation, and may include preparation of trial exhibits. 24 25C -62 EXHIBIT A Page 1 of 1 Right of Way Consulting and Related Services PART I — LIST OF KEY PERSONNEL Names . Functions Marcus Pi rom Project Manager Aaroa Amster Project R view & Coordination Madeleine Mamaux Project Review & Coordination PART 11-- LIST OF SUBCONSULTANT /SUBCONTRACTORS Subcontractor Name /Address Function NAIVE Page 35 of 36 25C -63 EXHIBIT B Page 1 of 1 Right of Way Consulting and Related Services PRICE SUMMARY.SHEET SCHEDULE 1 -- HOURLY RATES court/ Standard Depo Name Job Title/ Classification .lob Function Fully Burdened Hourly Rate Marcus Pi rom Sr. Manager Project Manacer 150 200 Aaron Amster Sr. Partner Project Manager 325 950 Madeleine Mamaux Partner Project Manager 295 900 vu y 6uiuV11uu idius inuiuoe an overneaa, general costs, administration costs and profit. Page 36 of 36 25C -64 BUSINESS GOODWILL APPRAISAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 21" day of March, 2011, by and between DONNA DESMOND ASSOCIATES, a California corporation (hereinafter "Consultant "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of business goodwill appraisal 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. 25C -65 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 goodwill appraisal services and furniture, fixture and equipment appraisal services shall not exceed an aggregate of $300,000, 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. 25C -66 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 25C -67 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: 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 and City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) 25C -68 P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647 -6515 To Consultant: Donna Desmond Associates 265 Beverly Glen Blvd. Los Angeles, California 90024 facsimile (310) 475 -6266 Attn: Donna Desmond 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 25C -69 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. 25C -70 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director — PWA 25C -71 CITY OF SANTA ANA DAVID N. REAM City Manager DONNA DESMOND ASSOCIATES DONNA DESMOND President Tax ID# 25C -72 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. 25C -73 • 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 BUSINESS GOODWILL APPRAISAL SERVICES includes: Consultant services will include providing: Budgetary Estimates of Goodwill Loss Budgetary estimates are used by public agencies in planning and preparing a project budget. Consultant's estimates of goodwill loss will be based upon a "drive by" site inspection of the subject businesses, limited market research, and any publicly available data. In addition, these estimates will take into consideration Consultant's experience in preparing goodwill loss appraisals of comparable businesses, as well as our knowledge of relevant statutes and case law, negotiated settlements and jury awards in eminent domain proceedings. Consultant's results will be presented in a brief letter. Goodwill Loss Acquisition Appraisals During the early stages of property acquisition, Consultant can provide preliminary estimates of goodwill loss. Acquisition appraisals are based upon data, which may be provided by the business' ownership at its discretion. Such information may include: leases; background on the business provided via owner /management interviews; historical and prospective financial data; and information about proposed relocation sites. In addition, Consultant shall perform basic transactional research in light of our understanding of the business' operations and financial condition. Consultant will also coordinate with real estate and fixtures and equipment appraisers to avoid duplication of 25C -74 compensation. Further, Consultant's analyses will be guided by relevant statutory and case law pertaining to compensation for loss of goodwill. The result of each acquisition appraisal study is presented in a brief report with attached schedules. Included within this document are the purpose of the assignment, the sources of information utilized, a brief description of the subject business and the valuation methods employed. Consultant will note any assumptions made in performing the analysis, as well as all information requested from the business' ownership, but not received, which, upon review by Consultant, may have an impact on the value conclusion. 25C -75 25C -76 EXHIBIT A -1 CONSULTANT'S PROPOSAL 25C -77 WORK PLAN In providing goodwill loss appraisal services, DDA proposes the following work process for each appraisal assignment: ❑ Meet with project team to gain an understanding of the project and potential impacts; o Provide preliminary estimates of goodwill for budgetary purposes, if requested; o Inspect the business facility; o Interview the business owner and management to determine history of operations and relocation needs; ❑ Review business' historical financial statements, tax returns and lease agreements; o Review all parcel appraisal reports and coordinate with real estate and fixtures and equipment appraisers to avoid duplication of compensation; ❑ Coordinate with agency staff and legal counsel to discuss strategy and approach; ❑ Coordinate with relocation agents to determine relocation options, feasibility of q relocation, mitigation issues and to avoid duplication of compensation; ❑ Perform market research to determine the business' marketability and external .% influences; ey Ft, ❑ Implement valuation methodology, including market based and income approaches, to determine the business' goodwill value in the before condition; ❑ Inspect potential or actual relocation site(s); n Review all relevant and available documentation from relocation site, including M lease, financial statements and unreimbursed capital expenditures; 15 of 23 DONNA DESMOND ASSOCIATES RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RIGHT OF WAY CONSULTING AND RELATED SERVICES 25C -78 o Implement valuation methodology to determine the loss of goodwill suffered by the business, including giving consideration to betterment, if any; o Prepare a full or summary narrative appraisal report or declaration of value; and o Provide support in negotiations and litigation (as needed). All of the above tasks would be completed by Donna Desmond. All appraisal services provided by Donna Desmond Associates are performed in conformance with the Uniform Standard of Professional Appraisal Practice ( "USPAP "). Appraisal reports can be completed within four weeks of receiving all applicable documentation from the business ' owners. Goodwill loss appraisals are often delayed by business owners' reluctance to provide financial documents, including income tax returns. DDA works closely with project staff and the relocation consultants to ensure business owners understand the necessity of providing such documentation. Further, DDA continues to engage the business owners in order to provide a level of comfort with the process. Donna Desmond provides all appraisal services to her clients. Therefore, less experienced staff members are not performing appraisal tasks or billing hours for bringing the responsible appraiser up to speed. As a result, the appraisal process is streamlined, typically resulting in a more cost effective fee structure for appraisal services, quicker tumaround time and a high level of quality. v i>f Q3 16 of 23 DONNA DESMOND ASSOCIATES '8 RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RIGHT OF WAY CONSULTING AND RELATED SERVICES `� 25C -79 PROPOSED STAFFING AND PROJECT ORGANIZATION ^• KEY PERSONNEL Donna Desmond, ASA Donna Desmond, President of Donna Desmond Associates, has specialized in business valuation since 1987. She has completed thousands of goodwill loss appraisal assignments for both public agencies and private parties throughout the State of .. California since 1987. Ms. Desmond has qualified as an expert in goodwill loss and business damages in the Superior Court of California in Los Angeles, Orange, San Diego, Kern, Santa Clara, San Francisco and Contra Costa counties and in the states of Nevada and Texas, and has testified extensively in arbitration and mediation throughout California. Prior to founding DDA in 1997, she was a principal with Desmond, Marcello & Amster, responsible for appraisal management and testimony. Ms. Desmond was employed with Desmond, Marcello & Amster from 1986 through 1997. From September 1986 through December 1990, Ms. Desmond was a financial analyst with the firm. From 1990 through 1994 she was a project manager and from 1994 through 1997 was a principal with the firm. sa Ms. Desmond is a senior member of the American Society of Appraisers in the Business Valuation Discipline. This designation was attained in 1995. She is also a member of the ., Institute of Business Appraisers. Ms. Desmond has written articles for International Right of Way Association newsletters and the California Redevelopment Journal. She is also a contributing author to the 13 of 23 DONNA DESMOND ASSOCIATES RESPONSE TO THE CITY OF SANTA ANA's RFP FOR RIGHT OF WAY CONSULTING AND RELATED SERVICES 25C -80 x K� A Handbook of Small Business Valuation Formulas, published in 1987 and revised in 1988. " Ms. Desmond regularly gives seminars to public agencies, attorney groups, and redevelopment and right of way organizations relative to issues pertinent to goodwill loss .w in eminent domain actions and billboard appraisal. .,a Ms. Desmond graduated with a bachelor's degree from the University of California, Los Angeles in 1986 and continues to attend professional education courses in appraisal, y finance and accounting. A Ms. Desmond will be directly responsible for all appraisal services provided to the City of Santa Ana. .q Ms. Desmond will be available to provide goodwill loss appraisal services for the duration of the contract with lite City of Santa Ana. No other person will replace Ms. Desmond. s7 y v1 �a eA1 as 14 of 23 DONNA DESMOND ASSOCIATES RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RIGHT OF WAY CONSULTING AND RELATED SERVICES 25C -81 25C -82 EXHIBIT B FEE SCHEDULE 25C -83 , , .0 ka 4d COST & PRICING DATA COST & PRICING DATA Donna Desmond Associates bills for appraisal services based upon hourly rates. Tbc 2010/2011 hourly rates areas follows: Appraisal Preparation $265.00 Litigation Support $265.00 - $365.00 Deposition and Court Testimony $365.00 PRICING DETAIL Goodwill loss appraisal fees are based on the relative complexity of the assignment and litigation requirements. Goodwill loss appraisal fees for various types of businesses are as follows: Business Type /Complexity Budgetary Estimate of Goodwill Loss Small Sole Proprietorship (i.e. accountant, hair salon, liquor store) Retail Type Business (i.e. restaurant, gasoline station, 99¢ Store) Larger Industrial/Manufacturing Typical Appraisal Fee $2,000 $3,500 - $4,500 $4,500 — $6,500 $6,500 - $12,000 Actual appraisal fees could vary for individual appraisal assignments, depending on the facts surrounding the matter. No subconsultant costs would be incurred. 18 of 23 DONNA DESMOND ASSOCIATES RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RtGkT OF WAY CONSULTING AND RELATED SERVICES �` 25C -84 -9 v Jil V ..i r� ut! ..e -a PROPOSED REiMBURSABLES Donna Desmond Associates does not charge for any costs, with the exception of trial exhibits produced by an outside finn. However, these costs are typically paid for by legal counsel. :9 i7 19 of 23 DONNA DESMOND ASSOCIATES a RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RIGFif OF WAY CONSULTING AND RELATED SERVICES li3 25C -85 25C -86 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: PURCHASE AGREEMENT FOR BRISTOL STREET CORRIDOR (PROJECT NO. 081700) 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 purchase agreement with Gretchen Investments LP, for the purchase of the property located at 515 North Bristol in the amount of $250,000 subject to nonsubstantive changes approved by the City Manager and City Attorney. 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 and Seventeenth Streets. To accommodate the widening for the second phase, acquisition of the entire property located at 515 North Bristol is required (Exhibit 1). The compensation amount is the appraised value prepared by an appraiser licensed by the State of California. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared Environmental Impact Report/Environmental Impact Assessment No. 89 -01 approved by City Council in 1990. 25D -1 Purchase Agreement For Bristol Street Corridor March 21, 2011 Page 2 FISCAL IMPACT Funds are appropriated in the Select Street Construction Fund (accounting unit 05917661 - 66100). APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Francisco Gutierrez Executive Direct 6,r/ Executive Director Public Works Agency Finance & Management Services Agency RG /SA Exhibit 1: Location map Exhibit 2: Agreement 25D -2 MATCHLINE SEE BOTTOM RIGHT CIVIC CENTER DR F--j 716J 7TH ST LEGEND SUBJECT PROPERTIES ACQUIRED PROPERTIES WASHINGTON ST 12TH ST 1. PUB 0 6TH ST L i- 5,1 6119maiMm ,I t I SANTA ANA BLVD L 4 3RD ST -r- T- i 1 4j15- 4.17 r -T : F 11TH ST 7-T-T 10TH ST r CIVIC CENTER DR EXHIBIT 1 MATCHLINE SEE TOP LEFT CITY COUNCIL TITLE: PURCHASE AGREEMENT AGENDA DATE FOR BRISTOL STREET CORRIDOR MARCH 21, 20n (PROJECT 081700) 11TH ST 7-T-T 10TH ST r CIVIC CENTER DR EXHIBIT 1 MATCHLINE SEE TOP LEFT CITY COUNCIL TITLE: PURCHASE AGREEMENT AGENDA DATE FOR BRISTOL STREET CORRIDOR MARCH 21, 20n (PROJECT 081700) 25D -4 PURCHASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS (Residential) THIS AGREEMENT, entered into this — day of , 2010, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "City" or "Buyer "), and Gretchen Investments L.P. a California limited partnership (hereinafter called "Seller "), regardless of number or gender; WITNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City, and City agrees to purchase from Seller, all that certain real property (hereinafter referred to as "said real property ") described as follows: All that certain real property located in the State of California, County of Orange, City of Santa Ana, described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 515 N. Bristol, Santa Ana, CA) Said purchase and sale of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance by Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, within thirty (30) days from and after the date on which the City has approved this Agreement. 2. Title to be Conveyed. (a) Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non - monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title except those exceptions shown in Paragraph 15 below. Seller hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as provided above. Seller further agrees that acceptance by City of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non - monetary, general or specific, and including any and all leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of Seller to convey title as hereinabove provided. 25D -5 3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount of TWO HUNDRED FIFTY THOUSAND AND NO /100 Dollars ($250,000) insuring the title of the City to said real property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non - monetary, general or specific, and including any and all leasehold interests), liens, clouds or defects in title, excepting such specific ones as city may hereinafter expressly agree to take subject to. Acceptance by City of any such policy of insurance, whether such insurance complies with the requirements of this paragraph or not, shall not constitute a waiver by City of its right to such insurance as is herein required of Seller, nor a waiver by the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure of Seller to convey title or to provide title insurance as required in this Agreement. 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close within 90 days of the City's execution of this Agreement. The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Exhibit "B" attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent hereunder. City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Exhibit "B" of the General Provisions of this Agreement. 5. Prooerty Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City. w 1 6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages, the total sum of TWO HUNDRED FIFTY THOUSAND AND NO /100 Dollars ($250,000). City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after: (a) Conveyance of said real property by Seller to City as hereinabove provided; (b) Acceptance by City of a Grant Deed conveying said real property to City; (c) Delivery to City of the policy of title insurance as hereinabove provided; (d) Recordation of the Deed conveying said real property to City. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property. 8. Rental and Occupancy By Seller. Seller agrees to execute a complete, current and correct statement of rentals (Seller Estoppel) on a form furnished to Seller by Buyer and deliver same to Buyer within fifteen (15) days hereof with copies of any written leases or rental agreements attached. All rents will be prorated as of the close of escrow on the basis of a 30- day month /360 -day year consistent with that statement, subject to approval of Buyer. Seller hereby agrees not to rent any units on the premises which are now vacant, or which may be vacated by present occupants prior to close of escrow. Seller agrees that any and all Tenant Security Deposits pertaining to the subject property collected by or in the possession of Seller prior to the close of escrow shall be transferred to and become the property of Buyer during escrow. Seller hereby warrants that the rental statement referred to shall include the terms of all rental agreements, tenancies, and leases (written, unwritten, recorded, or unrecorded) and Seller agrees to hold Buyer harmless from all liability from any such leases or agreements. Seller also warrants that there are no oral or written leases on all or any portion of the subject property exceeding a period of one month. 9. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 10. Heirs, Assigns. Successors in Interest. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 11. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 12. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 2501-7 13. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages. 14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M -36, P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is: Gretchen Investments Attn: Louisa Neal 6765 E. Swarthmore Dr. Anaheim, CA 92807 15. Exceptions. City agrees to accept title to said real property subject to the following NONE. 16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of said real property by City. 17, Hazardous Waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ( "Hazardous Materials ") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean 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 "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) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et sue. (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et eec . (42 U.S.C. S9601). 18. Comoliance With Environmental Laws. To the best of Seller's knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, 4 the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. 19. Indemnity. Seller agrees to indemnify, defend and hold the City harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, 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, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or up to the date this escrow shall close. Seller shall not be responsible for acts or omissions to act post close of this escrow. 20. Continaencv. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance and approval. 21. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and City. 22. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 23. Captions. 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. 24. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 25. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. U, 26. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 27. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 28. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 29. Authority to Execute Agreement. 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. 30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. The parties have executed this Agreement as of the date written below. Gretchen Investments L.P. �a /California limited partnership } By: .;COL Date- Y= r 1 CITY /BUYER: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: BY: 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 25D -10 EXHIBIT "A" LEGAL DESCRIPTION Real property in the City of Santa Ana, County of Orange, State of California, described as follovvs: THE SOUTH 43.60 FEET OF LOT 3 AND THE NORTH 2.35 FEET OF LOT 4 OF TRACT 271 AS SHOWN ON A MAP RECORDED IN BOOK 14, PAGE 9 OF MISCELLANEOUS MAPS RECORDS OF ORANGE COUNTY, CALIFORNIA. APN: 006 - 081 -26 25D -11 EXHIBIT "B" GENERAL ESCROW PROVISIONS All disbursements shall be made by Escrow's check. All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "close of escrow" means the date on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30 -day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized. There shall be no prorations of any existing insurance policies in this escrow. You are to furnish a copy of these instructions, amendments thereto, closing statements and /or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and /or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by you in connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10.00 per month. Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and /or supplement to any instructions must be in writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. 25D -12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE FIRST STREET BRIDGE REPLACEMENT OVER THE SANTA ANA RIVER (061723) r" CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with Hill International, Inc. in an amount not to exceed $967,500 subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The First Street Bridge over the Santa Ana River consists of two travel lanes in each direction; however, the street leading onto the bridge has three lanes (Exhibit 1). During rush hour, the bridge becomes a bottleneck that severely impedes traffic flow. To improve the situation, construction contract documents were prepared to widen the bridge to three lanes in each direction with pedestrian sidewalks on both sides and widening of the bridge approaches. Award of the construction contract is to be presented for the Council's approval at the March 21, 2011 meeting. Since the bridge construction is a highly specialized scope of work, and to ensure safe and high - quality construction, on November 15, 2010 the City Council approved the release of a Request for Proposals (RFP) to qualified construction management firm with experience in bridge construction. Subsequently, RFPs were sent to 11 consulting engineering firms, including three located in Santa Ana. Three firms submitted proposals, including one Santa Ana firm. An evaluation committee rated the proposals according to qualifications, experience, and capacity to perform the required work. Based on the proposals submitted, the scores for the firms are as follows: RATING SCORE Hill International, Inc. 1 91 URS Corporation 2 86 Anderson -Penna Partners, Inc. 3 79 25E -1 Agreement with Hill International for First Street Bridge Construction Management Services Over the Santa Ana River March 21, 2011 Page 2 The proposal from Hill International was highly rated based on its detailed scope of services, understanding of the project, qualifications, and experience with similar projects. It was the top- ranked firm based on technical merit. Hill submitted a fee proposal in the amount of $1,179,750. Staff has negotiated the fee and agreed to a fee in an amount that will not exceed $967,500. This includes a 1.7 percent contingency fund to compensate Hill if the construction contract exceeds 24 months. Staff recommends Hill International, Inc. be retained for the project. Hill has extensive experience with construction management of similar bridge construction project, and a fair and reasonable fee. ENVIRONMENTAL IMPACTS There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Measure M Street Construction Fund (accounting unit 03217660- 66220, project no. 061723) and the Select Street Construction Fund (accounting unit 05917660- 66220, project no. 061723). APPROVED AS TO FUNDS AND ACCOUNTS: r Raul odinez II Francisco Gutierrez �r� Executive Directo Executive Director r �� Public Works Agency Finance & Management Services Agency RG /MG Exhibit 1: Project Location Map 2: Agreement 25E -2 LEGEND ® PROJECT LIMITS EXHIBIT 1 SANTA ANA CITY COUNCIL TITLE: AGREEMENT FOR CONSTRUCTION p w A AGENDA DATE MANAGEMENT SERVICES FOR THE FIRST MARCH 21, 2011 STREET BRIDGE REPLACEMENT OVER PUBLIC MORNS AGENCY THE SANTA ANA RIVER (061723) SANTA ANA 25E -4 AGREEMENT FOR PROVISION OF PROFESSIONAL ENGINEERING SERVICES THIS AGREEMENT, made and entered into this 21" day of March, 2011 by and between HILL INTERNATIONAL, INC., a 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 construction management. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. The project will be funded in part through funds administered by the Federal Highway Administration and Caltrans retains oversight over the project. 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 perform construction management services for the Santa Ana First Street Bridge Replacement Project, as set forth in City's Request for Proposal dated November 2010, attached hereto as Exhibit A, as more fully detailed in Consultant's Proposal dated January 20, 2011, attached hereto as Exhibit B. 2. REPRESENTATIVES a. For purposes of implementing this Agreement, the representative of City shall be the Executive Director of the Public Works Agency, or his designated representative, and the representative of the Consultant shall be Sean Rouhani, or his designated representative. Except as may be otherwise stated herein, such representatives shall have the authority to act on behalf of their respective parties in carrying out the terms of this Agreement. Exhibit 2 25E -5 b. Consultant shall assign the appropriate key personnel to perform the services required by this Agreement, as set forth in the RFP and Consultant's Proposal. Consultant shall maintain the Construction Manager identified in its Proposal, and approved by the City. 3. OWNERSHIP OF REPORTS AND DOCUMENTS Upon completion of all work under this Agreement, ownership and title to all reports, documents, tracings, plans, specifications, estimates and maps prepared or obtained under the terms of this Agreement shall be delivered to, and become the property of City. Basic survey notes and sketches, charts, computations, and other data prepared or obtained pursuant to this Agreement shall be made available upon request of the City without restriction or limitation on their use. Consultant shall furnish the City all necessary copies of data needed to complete the review and approval process. 4. FINISHED AND PRELIMINARY DATA All of Consultant's finished technical data, including but not limited to illustrations, photographs, data including without limitation source code, binary code, all media, technical documentation and user documentation, photoprints and other graphic information required to be furnished under this Agreement, shall be City's property upon payment and shall be furnished with unlimited rights and, as such, shall be free from proprietary restriction except as elsewhere authorized in this Agreement. Consultant further agrees that it shall have no interest or claim to such finished, City- owned, technical data; furthermore, said data is subject to the provisions of the Freedom of Information Act, 5 USC 552. 5. COMPENSATION b. a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit C. The total sum to be expended under this Agreement shall not exceed $967,500 during the term of this Agreement. c. Progress payment will be made monthly in arrears based on services provided and allowable incurred costs. If consultant fails to submit the required deliverables in accordance with the time schedule set forth in the Scope of Services, City shall have the right to delay payment and /or terminate this Agreement in accordance with the provisions of Section 15, Termination. d. Payment will be made as promptly as City fiscal procedures will permit following receipt of itemized invoice in triplicate, evidencing work performed. The invoice shall be submitted no later than forty -five (45) calendar days after performance of the billed services. Invoices shall follow the format stipulated in the approved Cost Proposal, and shall reference this Agreement number and Project title. Final invoice must contain the final cost and all credits due to the City, including any equipment purchased. Final invoice shall be submitted not later than sixty (60) calendar days after 25E -6 completion of the work. Invoices shall be mailed to City's Project Manager at the following address: Michel Girgis 20 Civic Center Plaza (M -22) P.O. Box 1988 Santa Ana, CA 92702 e. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this Agreement. f. The parties mutually agree that this project will be partially funded through Federal funds, and that said funding is contingent on approval of the Project by the Federal Highway Administration (FHWA), and FHWA allocation of funds to the Project. Consultant shall not commence services until it receives a written Notice to Proceed (NTP) executed by the Executive Director of Public Works. Said NTP is contingent on 1) City's receipt of FHWA and California Department of Transportation (Caltrans) approval of the Project and appropriation of FHWA funds for completion of the Project. If the FHWA does not authorize funding for said Project, the City may terminate this Agreement, as set forth in Section 15, below. 71 9 : U This Agreement shall commence on the date first written above and Consultant shall commence work after Notification to Proceed by City's contract manager. The Agreement shall terminate on City's Notice of Completion of the First Street Bridge, unless terminated earlier in accordance with Section 15, below. 7. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 8. 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: 25E -7 a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary 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 $2,000,000 combined single limit. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation insurance. in accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. 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 cancelled 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. 25E -8 9. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief caused by the negligent acts, omissions or willful misconduct of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on its behalf, arising out of the performance of this Agreement, except to the extent caused by the sole negligence, active negligence or intentional misconduct of the City or any other indemnified party. 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, asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the negligent acts or willful misconduct of the Consultant, its contractors, subcontractors, agents, employees or other persons acting on its behalf. City may make all reasonable decisions with respect to its representation in any legal proceeding. 10. CONFIDENTIALITY OF DATA a. If Consultant receives from the City financial, statistical, personal, technical, or other data and information which are designated confidential 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. b. Permission to disclose information on one occasion shall not authorize the Consultant to further disclose such information, or disseminate the same on any other occasion. c. Consultant shall not comment publicly to the press or any media regarding the Agreement or City's actions regarding the same. d. Consultant shall not issue any news release or public relations item of any nature whatsoever, regarding the work performed or to be performed pursuant to this Agreement, without City's prior review of the contents thereof and written approval. e. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section. 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 25E -9 12. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by 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 Executive Director of the Public Works Agency City of Santa Ana 20 Civic Center Plaza (M -22) P.O. Box 1988 Santa Ana, California 92702 facsimile 714- 647 -5058 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 facsimile 714- 647 -6515 To Consultant: Hill International, Inc. Michael Tahan 18100 Von Karman Avenue, Ste. 700 Irvine, California 92612 facsimile 949 - 474 -8427 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. 25E -10 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, 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. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERMINATION a. 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: (i) As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. However, any use of unfinished work product shall be at City's sole risk. (ii) Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. b. City may terminate this Agreement for Consultant's default if a federal or state proceeding for the relief of debtors is undertaken by or against Consultant, or if Consultant makes an assignment for the benefit of creditors, or if Consultant 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 City. Consultant 25E -11 shall be liable for any and all reasonable costs incurred by City as a result of such default, including but not limited to re- procurement costs of the same or similar services defaulted by Consultant under this Agreement except that, Consultant shall not be liable for any costs exceeding the amount of total compensation payable under this Agreement to Consultant by the City, as identified in Exhibit B. 16. AUDIT AND INSPECTION OF RECORDS Consultant shall provide City, the FHWA, Caltrans or other agents of the City, such access to Consultant's accounting books, records, payroll documents and facilities of the Consultant which are directly pertinent to this Agreement for the purposes of examining, auditing and inspecting all accounting books, records, work data, documents and activities related hereto. Consultant 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 Consultant's performance hereunder and for a period of three (3) years from the date of final payment by City. Consultant shall permit any of the foregoing parties to reproduce documents by any means whatsoever or to copy excerpts and transcriptions as reasonably necessary. 17. AUDIT REVIEW PROCEDURES a. Any dispute concerning a question of fact arising under an interim or post audit of this contract that is not disposed of by agreement, shall be reviewed by the Executive Director of the Public Works Agency. b. Not later than 30 days after issuance of a final audit report, the Consultant may request a review of unresolved audit issues by the City's Chief Financial Officer. Such request shall be made in writing. c. The filing or review of an audit dispute will not excuse the Consultant from full and timely performance of this Agreement. 18. SUBCONTRACTING Consultant shall perform all work contemplated in its Proposal, and no work pursuant to this Agreement shall be subcontracted without the written authorization by City, except that work expressly identified in Consultant's Proposal. Any subcontract in excess of $25,000 shall contain all the provisions of this Agreement which are applicable to subcontractors. 19. FORCE MAJEURE 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; commandeering of material, products, plants or facilities by the federal, state or local government; national fuel shortage; or a material act or omission by the other party; when satisfactory evidence of such cause is presented to the other party, and provided further that such nonperformance is unforeseeable, beyond the control and is not due to the fault or 25E -12 negligence of the party not performing. 20. COST PRINCIPALS a. Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the allowability of cost individual items. b. Consultant agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. c. Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 48 CFR, Federal Acquisition Regulation System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to City. 21. PROGRAM FRAUD / FALSE OR FRAUDULENT STATEMENTS a. Consultant acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et sue. 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, Consultant certifies the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to this Agreement or the FHWA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, Consultant further 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 the penalties of the Program Fraud Civil Remedies Act of 1986 on Consultant to the extent the Federal Government deems appropriate. b. Consultant 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 a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FHWA 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, et seq. on the Consultant, to the extent the Federal Government deems appropriate. c. Consultant agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FHWA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 25E -13 22. SUSPENSION AND DEBARMENT Consultant's signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that the Consultant has complied with Title 49, Code of Federal Regulations, Part 29, Debarment and Suspension Certificate, which certifies that he /she or any person associated therewith in the capacity of owner, partner, director, officer or manager, is not currently under suspension, debarment, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it in a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to the City. 23. 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. 24. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. 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. 25. 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. 25E -14 26. 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ II Executive Director Public Works Agency 25E -15 CITY OF SANTA ANA DAVID N. REAM City Manager HILL INTERNATIONAL, INC. MICHAEL TAHAN Senior Vice President Tax ID# 25E -16 MAYOR Miguel A. Pulido MAYOR PRO TEiM Claudia C. Alvarez COUNCILMEMBERS David Senavides Carlos Buslamante Michele Martinez Vincent F. Sarmiento Sal Tlnajero ADDENDUM NO. TWO January 5, 2011 EXHIBIT "At' CITY OF SANTA ANA PUBLIC WORKS AGENCY M -22 P.O. Box 1988 Santa Ana, California 92702 CITY MANAGER David N. Ream CITY ATTORNEY Joseph W. Fletcher CLERK OF THE COUNCIL Marla D. Hulzar SUBJECT: CONSTRUCTION MANAGEMENT SERVICES FOR FIRST STREET BRIDGE REPLACEMENT OVER THE SANTA ANA RIVER 1. Section V. Schedule of the RFP is revised to read as follows: Proposals are due in the Public Works Agency Executive Director's office, before 5:00 p.m. on January 20, 2011 to the attention of the Executive Director of Public Works Agency. Therefore, proposals are due in the office of the Executive Director of the Public Works Agency, at 20 Civic Center Plaza — Ross Street Annex, Fourth Floor, Santa Ana, California 92702, on or before 5:00 p.m.. January 20, 2011. 2. Add the following to item 2. Proposed Staff of PART A: Consultant's Qualifications of Section XI. RULES FOR PROPOSAL: Consultant shall make sincere efforts to hire a Santa Ana base sub - consultant. Sincerely, David Ip Principal Civil Engineer kAconstructionlrfps12010 construction mgmt -1st street bridge replacement\ tr rfp 1- 5-2011 addendum two.docx 25E -17 MAYOR Miguel A. Pulido MAYOR PRO TEM Claudia C. Alvarez COUNCILMEMBERS David Benavldes Carlos Bustamante Michele Martinez Vincent F. Sarmiento Sal Tinajero ADDENDUM NO. ONE December 6, 2010 CITY OF SANTA ANA PUBLIC WORKS AGENCY M -22 P.O. Box 1988 Santa Ana, California 92702 CITY MANAGER David N. Ream CITY ATTORNEY Joseph W. Fletcher CLERK OF THE COUNCIL Maria D. Huizar SUBJECT: CONSTRUCTION MANAGEMENT SERVICES FOR FIRST STREET BRIDGE REPLACEMENT OVER THE SANTA ANA RIVER Section V. chedule of the RFP is revised to read as follows: Proposals are due in the Public Works Agency Executive Director's office, before 5:00 p.m. on January 6, 2011 to the attention of the Executive Director of Public Works Agency. Therefore, proposals are due in the office of the Executive Director of the Public Works Agency, at 20 Civic Center Plaza — Ross Street Annex, Fourth Floor, Santa Ana, California 92702, on or before 5:00 p.m., January 6. 2011. Sincerely, b XA.; David Ip Principal Civil Engineer kAconstruct1onlrfps\2010 construction mgmt -1st street bridge replacementVtr rfp 12 -2010 addendum one.doox 25E -18 From: Girgis, Michel Sent: Wednesday, December 01, 201010:47 AM To: 'jomeyer @hntb.com' Subject: FW: First Street Bridge RFP From: Girgis, Michel Sent: Wednesday, December 01, 2010 10:25 AM To: Timothy T. Wassli, P.E.' Cc: 'Russell, Andrea'; 'Cheryl Blecker'; ' Jamie .burrola @us.mwhglobal.com'; 'spender @rbf.com'; 'melissa. perry@ch2m.com'; 'julle@bergcm.com'; 'landerson@caltrop.com'; 'dchow @wilidan.com', ' jomyler@ hntb. com;' tonyacompton @hillinti.com ;'ddemilia@ andpen .com';'tom— herbel @urscorp.com'; Ip, David Subject: RE: First Street Bridge RFP Tim, The following is in response to your e-mail below and coincide with the same numbering: Yes, you may obtain a copy of plans and specifications at your expense by sending a bonded printing company to our office to make a copy for your use. The original needs to be return to this office within 24 hours. 1. Yes, each exhibit listed in appendix "D ", page 15, needs to filled out and /or signed and submitted with the proposal. 2. Firm needs to name a resident engineer or a construction manager In their proposal. Firm also may propose other staff not mentioned in RFP. 3. Under section XV, certification to be submitted shall be (Appendix "C ") instead of (Attachment "A ") mentioned. a. Appendix "C" needs to be submitted with the proposal. b. Please see item 1 above. 4. Your assumption is correct. 5. Yes. 6. Yes. If you have any questions, please tali me. GITY OF SANTA MA/PWA (`714) 647-5042 From: Timothy T. Wassil, P.E. [Moira twasjil@tcmgroup.us} Sent: Tuesday, November 30, 2010 9:56 AM To: Girgis, Michel file : //K: \Construction\RFPs\2010 construction mgmt -1st street bridge replacement\FW First... 1/4/2011 25E -19 -0- — . —. Cc: 'Russell, Andrea'; 'Cheryl Blecker' Subject: First Street Bridge RFP Good morning Mr. Girgls, It was nice talking to you this morning. Below are our questions as they relate to the RFP. You were also going to let us know weather or not we might be able to obtain a copy of the plans to assist us in responding to the RFP I. Appendix D outlines Federal Requirement. Are any of the Exhibits Included therein to be addressed as part of our proposal? a. In particular, Exhibit 10 -1 provides the DBE goal for the Agreement. Is the proposer expected to comply with this requirement as stated on page 10 -49? b. If so, which forms are to be submitted as part of the proposal? 2. The City identifies 2 positions in its RFP, CM /RE and Inspector. Are we expected to propose additional positions /staffing? 3. Attachment A, Affirmative Action, is the only attachment /exhibit specifically requested (Section XV) to be submitted with the proposal. a. Is Attachment C, Non - Discrimination, also required as Non - Discrimination is addressed in Section XVI? b. Are there any other attachments required to be submitted? 4. Page 8, Section XI, Part A, 4, States, "...related water tank projects...." We assume this was meant to say bridge replacement projects. 5. Page 7, Section VIII, requires eight (8) copies of the proposal and page 8, Section XI, Part B, requires three (3) copies of the Part B proposal. Are we to submit 8 copies of Part A and only 3 copies of Part B? 6. RFP states proposal is limited to 15 pages, excluding appendix materials, Please confirm that covers, table of contents, tabs, and all required forms are not included In the 15 page limit. Your assistance in this matter is greatly appreciated. We look forward to submitting our proposal. Should you have any questions, please contact me at (760) 989 -1779 or via e-mail at twassil@tcmgroupus. Best regards, Timothy T. Wassil, P.E. I Senior Project Manager I TCM Group I twassimtcmaroumus 3130 -8 Inland Empire Blvd. I Ontario, CA 917641 W: 909.527.85801 M: 760.989.1779 F: 909.527.85901 www.TCMGroup.us Please consider the environment before printing this e-mail file : //K: \Construction\RFPs\2010 construction mgmt -1st street bridge replacement\FW First... 1/4/2011 25E -20 CONSTRUCTION MANAGEMENT SERVICES FOR FIRST STREET BRIDGE REPLACEMENT OVER THE SANTA ANA RIVER PROJECT NO. 06 -1723 Federal. project BHLS- 6063(083) CITY OF SANTA ANA PUBLIC WORKS AGENCY 20 CIVIC CENTER PLAZA, M -22 ROSS STREET ANNEX SANTA ANA, CALIFORNIA 82702 r DAVID Y. C. IP PRINCIPAL CIVIL ENGINEER NOVEMBER 2010 25E -21 TABLE OF CONTENTS I. GENERAL PROJECT DESCRIPTION ..................................................... ............................... 2 II. PROPOSED SCOPE OF SERVICES ..................................................... ............................... 4 III. CITY'S RESPONSIBILITIES ................................................................. ............................... 6 IV. ISSUING OFFICE ................................................................................. ............................... 7 V. SCHEDULE ............................................................................................ ............................... 7 VI. PROPOSAL REJECTION .................................................................... ............................... 7 VII. ADDENDA ........................................................................................... ............................... 7 VIII. PROPOSAL CONTENT AND SIGNATURE ....................................... ............................... 7 IX. ACCEPTANCE OF CONTRACT .......................................................... ............................... 7 X. DISCLOSURE ....................................................................................... ............................... 8 XI. RULES FOR PROPOSAL ........................... XII. SELECTION PROCEDURE .............................................................. ............................... 10 XIII. METHOD OF PAYMENT .................................................................. ............................... 11 XIV. REGULATIONS ................................................................................ ............................... 11 XV. CITY'S AFFIRMATIVE ACTION PROGRAM ..................................... ............................... 11 XVI. NON - DISCRIMINATION BY CONSULTANTS ................................. ............................... 11 XVII. SAMPLE AGREEMENT FOR CONSULTING SERVICES (APPENDIX A) ...................... 11 APPENDIX A- SAMPLE CONSULTANT AGREEMENT .............. .............................12 APPENDIX B- CERTIFICATE OF LIABILITY INSURANCE SAMPLE .............................. 13 APPENDIX C- CERTIFICATION OF NON - DISCRIMINATION BY CONSULTANTS ....... 14 APPENDIX D- FEDERAL REQUIREMENTS ................................ .............................15 1 25E -22 REQUEST FOR PROPOSAL CONSTRUCTION MANAGEMENT SERVICES FOR THE FIRST STREET BRIDGE REPLACEMENT OVER THE SANTA ANA RIVER {. GENERAL PROJECT DESCRIPTION The City of Santa Ana plans to replace the First Street Bridge over the Santa Ana River from four travel lanes to six lanes including sidewalks on both sides of the bridge. The purpose of this Request for Proposal (RFP) is to solicit proposals from qualified consulting firms to provide construction management services for the project. Preliminary Plans and Specifications are available for review by the proposer at the office of the Construction Engineer of the City of Santa Ana, located at 20 Civic Center Plaza, Ross Street Annex, Third floor. The City is anticipating advertising the project by January 2011, awarding by March 2011, and starting construction by May 2011. However, there may be delays in selecting the consultant due to the pre -award audit as required by Chapter 10 of the Caltrans Local Assistance Procedure Manual. There is no longer a pre -award audit requirement for contracts under $1 million dollars. The proposed bridge replacement is partially funded with Highway Bridge Replacement and Rehabilitation (HBRR) funds, which are administered by the Federal Highway Administration (FHWA) with local oversight by Caltrans. The remaining funding is locally funded by the City. The bridge is identified as bridge #55C0022 in the Caltrans Bridge Inventory. Construction cost of the project is estimated at $10.5 million with an estimated construction time of 24 months. The proposer shall prepare a fee and reimbursable expenses proposal according to Subsection B of Section XI - RULES FOR PROPOSAL of this RFP. The proposal shall be limited to 15 pages, excluding appendix materials. A cover letter shall summarize salient points of the proposal and guarantee that the proposed personnel will be committed to the project as represented, and shall not be removed or replaced without the City's written consent. K 25E -23 A. Construction and phasing The existing bridge consists of two separate structures: a north structure and a south structure that were built at different times. It is crucial for f=irst Street to remain operational during construction, so one through -lane in each direction will remain open during construction. In addition to the bridge structure, the project will be completed with the changing of the roadway approaches to meet the alignment of the new bridge. Construction of the new bridge will occur in two phases starting with the north structure. Work of this project consists of: Phase 1: North Structure Phase 1 begins with redirecting all traffic onto the existing south structure, one lane in each direction. Demolition Demolition of portions of the north structure to include superstructure and foundation, such as columns, wall piers, footings, and pile caps. The piles and drilled shafts of the existing bridge structure will be cut off one foot below the channel invert. Construction Construction includes the placement of the new bridge foundation elements during dry season as well as upper portions of the bridge superstructure, such as girders and deck. Placement of the superstructure of the bridge is not required to be conducted within the dry season. A new retaining wall will be built in the northeast quadrant of the bridge. Phase 2 :South Structure After completion of the new portion of the bridge, traffic will be routed onto it, and the south portion will be demolished. Demolition The Phase 2 demolition encompasses the same demolition activities as Phase 1, but they will occur on the existing south bridge structure. Construction Phase 2 construction will encompass activities similar to Phase 1 but on the south portion of the bridge. Also, a new retaining wall will be built in the southwest quadrant of the bridge. 3 25E -24 B. Pry and Wet Season Activities All demolition activities and some construction activities will take place only in the dry season, April 30 to October 1 annually, due to seasonal constraints of working in the riverbed. Therefore, it may take approximately two dry seasons to complete the new bridge. C. Detour for Overhead Construction Activities The bike trail along the river will remain open during both Phases 1 and 2. However, certain construction activities which would pose a hazard to bike trail uses, such as demolition of the existing bridge and erection of the precast girders for the new bridge, will require a temporary detour of the bike trail. During these activities, both northbound and southbound cyclists will have to exit prior to First Street at either McFadden Avenue or Fifth Street. II. PROPOSED SCOPE OF SERVICES The Consultant shall serve as an extension of City staff and respond directly to the Construction Engineer or his authorized representative. The Consultant shall be a registered engineer in the State of California and furnish an on -site resident engineer, or a construction manager, and other support staff, if proposed by the consultant, to assist the City in managing construction ensuring the work to be completed in accordance with the contract documents. Through on -site inspection of the work and diligent coordination among the project participants, the Consultant shall endeavor to provide protection for the City against defects and deficiencies in the work and to strive for a timely completion within budget. The Consultant shall provide and maintain sufficient field staff to manage the construction contract. The resident engineer or the construction manager shall have experience to manage and administer projects similar to this project as outlined in Section I- GENERAL PROJECT DESCRIPTION of this RFP. The resident engineer or construction manager shall work with representatives from the City, the design engineer, and the contractor to ensure the project's full compliance with the contract documents. The consultant's responsibility shall include but not limited to the following; 1. Receive bonds and certificate of insurance from the contractor, and forward them to the City for approval. Attend pre - construction meetings. Schedule and conduct weekly construction and progress meetings to discuss such matters as procedures, progress, problems and scheduling. Prepare and promptly distribute minutes. 2. Review construction schedule, including activity sequences and duration, schedule of submittals and schedule of delivery for products with long lead -time. Update the project 0 25E -25 schedule as required to show current conditions and revisions required by actual progress. 3. Conduct comprehensive evaluation of change order requests, provide independent estimates and render recommendations. Assist in claim resolution. 4. Monitor the contractor's safety program. Take necessary steps to ensure the job site conditions are in compliance with OSHA regulations. 5. Maintain cost accounting records on authorized work performed under unit costs and additional work performed on the basis of actual costs of labor and materials, or other work requiring accounting records. 6. Develop and implement procedures for the review and processing of applications by contractor for progress and final payments. Make recommendations for certification to the City for payment. 7. If required, assist the City in selecting and retaining the professional services of special consultants and testing laboratories and coordinate their services. 8. Determine that the work of contractor is being performed in accordance with the contract documents. Make recommendations to the City regarding special inspection or testing of work not in compliance with the provisions of the contract documents. Subject to review by the City, reject work which does not conform to the requirements of contract documents. 9. The consultant shall not be responsible for construction means, methods, techniques, sequences and procedures employed by the contractor in the performance of the contract, and shall not be responsible for the failure of the contractor to carry out work in accordance with the contract documents. However, any errors, omissions, or discrepancies found in the Contract Documents shall be called to the attention of the City and clarified prior to construction starts. 10. Consult with the City when the contractor requests interpretations of the meaning and intent of the drawings and specifications, and assist in achieving the resolution of problems which may arise. 11. Process all shop drawings, project data, samples and other submittals received from the contractor; coordinate them with information contained in related documents, and transmit to the design engineer for review and approval. 12. Record the progress of the project. Submit written daily and progress reports to the City. Keeps a daily log containing a record of weather, contractor's work on the site, number of workers, work accomplished, problems encountered, and other relevant data. Make the log available to the City. Prepare and send Weekly Statement of 5 25E -26 Working Days to the contractor. Check certified payrolls. Monitor contractor's compliance with labor code requirements. 13. Maintain (at the job site) records of contract documents including drawings, addenda, change orders, and other modifications of plans and specifications marked to show all changes made during construction. Maintain as -built records of underground utilities, including locations and depths of trenches. At the completion of the project, deliver to the City all contract documents including as -built records. 14. Evaluate the completion of the work of the contractor and make recommendations to the City when work is ready for final inspection. Assist the City in conducting final inspections. Secure and transmit to the City required guarantees, affidavits, leases, operations manuals and other documents stipulated to be submitted by the contractor. 15. Provide computer, telephone services, and copy and fax machines at the site. These equipments are the property of the consultant. Ill. CITY`S RESPONSIBILITIES 1. Provide a testing laboratory for material tests and special inspections on reinforced concrete, structural steel, and grading and other quality control advisees as required by the contract documents. 2. Process progress payments upon receipt of approved payment requests from the resident engineer. 3. Furnish copies of construction documents, including plans and specifications. 4. Retain the engineer to review shop drawings and submittals, to respond to requests for information and to revise plans if needed. 5. Provide a field office for the consultant's field personnel. IV. ISSUING OFFICE Raul Godinez II, Executive Director, Public Works Agency — M -22; 20 Civic Center Plaza — Ross Street Annex, Fourth Floor, Santa Ana, California 92702. V. SCHEDULE Proposals are due in the Public Works Agency Executive Director's Office, before 5:00 p.m. on December 17, 2010, to the attention of the Executive Director of Public Works Agency. C 25E -27 VI. PROPOSAL REJECTION The City reserves the right to reject any or all proposals. If such decision is made, the City shall not be liable for any pre - contractual expenses. Pre - contractual expenses are defined as expenses incurred by the offeror in: (a) preparing the proposal in response to this RFP; (b) submitting that proposal to the City; (c) negotiating with the City any matter related to this proposal; (d) any other expenses incurred by offeror prior to date of award, if any, of the agreement. Proposer shall not include any such expenses as part of the price as proposed in response to this RFP. VII. ADDENDA Any subsequent changes in the RFP from the date of issuance to date of submittal will be made in the form of addenda by the issuing office to those parties who have provided the proper notice of interest in responding to the RFP. VIII. PROPOSAL CONTENT AND SIGNATURE Eight copies of the proposal will be required. All copies shall be signed by the individual or the company official with the power to bind the company in its proposal. To be considered, all proposals must be completely responsive to the RFP. IX. ACCEPTANCE OF CONTRACT The contents of the proposal of the successful consultant shall become contractual. obligations if a contract ensues. Failure of a consultant to accept these obligations may result in the cancellation of any award. Any damage accrued by the City as a result of the consultant's failure to contract may be recovered from the consultant. A copy of the City's standard consultant agreement is included in Section XVII for the proposers' information. X. DISCLOSURE Any information other than cost and price which the Consultant does not wish to be disclosed, other than for the purpose of evaluation, should have each applicable sheet or part marked "Confidential." This data shall not be disclosed, duplicated or used in whole or in part for any purpose other than to evaluate the response. However, if a contract is awarded to the proposer, the City shall have the right to duplicate, use or disclose this information to the extent provided in the contract. This restriction will not limit the City the right to use information if it is obtained from another source. 7 25E -28 XI. RULES FOR PROPOSAL The signer of the proposal must declare in writing that the only person, persons, company or parties interested in the proposal as principals, are named therein; that the proposal is made without collusion with any other person, persons, company or parties submitting a proposal; that it is in all respects fair and in good faith without collusion or fraud, and that the signer of the proposal has full authority to bind the Consultant. A Consultant's proposal for construction management services shall be submitted in two parts: (A) Consultant's Qualifications, and (B) Consultant's Fee and Reimbursable Expenses. Both parts A and B must bear the signature of the individual with the power to bind the proposing firm to the proposal. PART A: Consultant's Qualifications 1. Organization and Credentials of the firm. Provide a synopsis of the consulting firm's past experience and qualifications related to this project. 2. Proposed staff. Name the resident engineer, or the construction manager, and other staff the firm is proposing, and list their experience, qualifications and education related to this project. 3. Understanding the project. Describe the firm's understanding of the tasks of the project and approaches to accomplish them. 4. List of construction management projects completed by the Consultant, including all related bridge projects similar to this project as outlined in Section I- GENERAL PROJECT DESCRIPTION of this RFP. List the names and telephone numbers of the owner's representatives of the project and a brief description for each. 5. Other relevant Information. PART B: Consultant's Fee and Reimbursable Expenses (Cost Proposal) Submit three copies of cost proposal in a sealed envelope to the Executive Director of the Public Works Agency of the City of Santa Ana. These copies of cost proposal shall not be included in the same envelope containing Part A of the proposal. The cost proposal must include the projected staff hours, hourly rates, unit prices and reimbursable expenses for the project, as follows: 25E -29 [I) Itemized estimated breakdown for services for construction management for the duration of construction. a. Personnel costs - Itemized to show the following: 1. Personnel by classification /responsibilities. 2. Hourly rate for each classification. 3. Estimated hours for each personnel category. 4. Subtotal cost for each category. 5. Total estimated personnel cost. The estimated construction duration stated above is for the purpose of cost estimate only. The length of time requiring Consultant's services will be dependent on the construction progress. For services under this category, the Consultant shall be paid according to hourly rates set forth herewith and the actual hours of service. b. Estimated reimbursable Expenses: 1. Costs of supplies and materials (itemized). 2. Travel - Transportation and per diem or subsistence listed separately, if any. 3. Any other direct charges. 4. Total estimated reimbursable expenses. For services under this category, the Consultant shall be paid according to the rates set forth herewith and the actual reimbursable expenses. c. Subtotal of a and b. [II) Contingency services for each month after the original time: Services under this category will be provided when requested by the City, and the Consultant shall be paid according to hourly rates set forth herewith and the actual hours of service. For the purpose of comparison, each proposer shall use the same number of hours: 600 hours for the construction manager and 600 hours for a construction inspector. The subtotal of this category shall be calculated as follows: E 25E -30 Proposed Hourly Rate Hours Total Construction Mgr, or Resident Engineer $ /Hr. 600 $ Inspector construction $ /Hr. 600 $ [1111 Grand total of the estimated proposed cost shall be the sum of (1) Itemized breakdown for services and (II) Contingency services. Service by the Consultant will stop after the construction completion of this project. Consultant will be compensated for actual hours of service, hourly rates, unit costs and reimbursable expenses according to the fee schedule of the contract; this contract is a not to exceed contract. [IV] Since demolition activities and some construction activities will take place only in the dry season due to seasonal constraints of working in the riverbed and to comply with the project permits, construction may need to be suspended during the rainy. Therefore; the consultant shall propose a plan to deal with staffing idle time during the construction suspension. XII. SELECTION PROCEDURE /after all proposals have been evaluated fully by a selection committee, the consultants with the highest scores may be invited to participate in a presentation /interview. The rating of the consultants shall be based on the professional qualifications necessary for the satisfactory completion of the project. Following this, the envelope containing Fee and Reimbursable Expenses of the best proposals will be opened. The ultimate selection will be based upon both technical merit and cost competitiveness. The City reserves the right to negotiate with the qualified proposers regarding the proposed fees prior to award of the agreement. The selected consultant (Consultant) shall execute an agreement based on the format shown in Section XVII. XIII. METHOD OF PAYMENT Payment to the Consultant shall be made monthly based on hourly rates and hours worked in performing the required services. Invoices shall be submitted to the Construction Engineer or his authorized representative for approval. Consultant's invoices shall include a breakdown of staff hours for each task and necessary reimbursable items. 10 25E -31 XIV. REGULATIONS The Consultant will be expected to comply with all applicable Federal and State regulations, local codes, and contract provisions. XV. CITY'S AFFIRMATIVE ACTION PROGRAM The City has an affirmative action program. The purpose of the affirmative action program is to encourage disadvantaged business enterprises in participation of City projects. The attached "Certificate of Non - Discrimination by Consultants" shall be completed by each submitted firm and included in the proposal (Appendix "C "). XVI. NON - DISCRIMINATION BY CONSULTANTS As suppliers of goods or services to the City of Santa Ana, the firm submitting a proposal shall agree that it does not discriminate in its employment with regard to race, color, religion, sex or national origin, that it is in compliance with all federal, state and local directives and executive orders regarding non - discrimination in employment; and that it agrees to demonstrate positively and aggressively the principle of equal opportunity in employment. XVIL SAMPLE CONSULTANT AGREEMENT (Appendix "A ") KAConstructtonlRFPs\20i0 construction mgmt -1st street bridge replacement \RFP 1st street bridge replacement -Const Mgmt Ser Ace.rtf ill 25E -32 City of Santa Ana Public Works Agency Construction Management Services for the First Street Bridge Replacement Over the Santa Ana River Part A: Consultant Qualifications January 20, Mft Project No. X06- 1723 } t 11"Itt Hill International January 20, 2011 Hill International, Inc. 18100 Von Karman Ave, Suite 700 Irvine, CA 92612 Tel: 949 -474 -2908 Fax: 949- 474 -8427 www.hillinti.com Mr. Raul Godinez, II Executive Director Public Works Agency 20 Civic Center Plaza Santa Ana, CA 92702 Subject: Submittal of Proposal for Construction Management Services for the First Street Bridge Replacement Over the Santa Ana River I Project No. 06 -1723 Dear Mr. Godinez: We are excited about the opportunity to work with you and augment your staff for the First Street Bridge Replacement project. From our previous meetings with you and your staff, we know that this Is an exciting time for Santa Ana as you continue to upgrade and expand your city's transit needs. Providing project and construction management, as well as Inspection and support services on projects like this is what Hill International, Inc. (Hill) does best. Our Objective is to assist the City in delivering the project successfully in accordance with the contract plans and requirements. Hill establishes a winning team spirit with the community and all stakeholders affecting the project and provides effective communication and coordination. Our handpicked team has the requisite capabilities to safely: 1. Provide high quality construction management services by utilizing the most qualified and experienced staff 2. Deliver the project on time and within budget by establishing clear lines of communication and implementing proactive and disciplined control of the project documents and schedule 3. Implement a proactive and effective public communications plan with local residents, business owners, and public safety and City officials 4. Seamlessly integrate with the City's staff and "work under one hard hat" A Value Added Benefit is that we realize traffic issues are of great concern to the community. Hill, at no cost to the City, shall bring the added value of a professional with 28 years of Santa Ana public safety and traffic experience. Mr. Steve Lodge will work with public safety and City officials to coordinate a pro -active traffic plan well in advance of construction. He will assist the City and the on -site professionals In mitigating any community traffic and safety concerns. Our team has made visits to the construction site, studied different staging locations, and evaluated reasonable alternate detour routes to handle peak traffic hours. We are confident that we can relieve congestion over the bridge during construction with a well - planned, coordinated effort, Hill will communicate directly with the surrounding business community by providing current updates through each phase in an effort to eliminate any adverse effects on their businesses. We will provide traffic flow patterns during the construction phase that will provide continued access to commerce and safety vehicles. The local residents and business owners will see that the City is making every possible effort to minimize the impact on their daily lives. 25E -34 Zo I 10 Mr. Raul Godinez, II 4 Executive Director 30 Page 2 of 2 1 Qualifications and Experience You Can Count On is what Hill brings, with our reputation as a leader in construction 14 management and ability to manage construction risk at a local level, providing services on projects from our Western 4 Region headquarters located 'in Irvine, which oversees 150 employees. Our personnel's extensive experience and 4 lessons learned capabilities come from working with clients just like the City of Santa Ana. it Our Proposed Team of professionals are experienced in all aspects of construction management, inspection, and support services on projects with similar characteristics to the First Street Bridge project. They have hands- on experience in doing exactly what is needed to complete your project successfully. �4 • Mr. Sean Rouhani, PE, will serve as your Construction Manager /Resident Engineer. Mr. Rouhani has more than 28 years of project and construction engineering experience on highway /roadway, bridge, and transportation structures construction projects, including work in waterways (flood control channels). He worked 7 years with Caltrans' Division of Structures. He has been a resident engineer on projects totaling over $800 million. • Mr. Jose Burbano, EIT, Construction Inspector, has more than 12 years of extensive construction Inspection experience in bridges, structures, roadways, and channels. Mr. Burbano is a seasoned engineer who has been cross - trained on both structures and roadway inspection through working on a number of Caltrans and public works projects. His experience includes bridge construction in flood control channels. Our key personnel shall be supported, as- needed, by a team of qualified and experienced staff, which Includes, but is not limited to, an office engineer, CPM scheduling support, and specialty inspection services. Commitment to the City. We have partnered with two Santa Ana -based UDBE /DBE firms, WRC Consulting Services (WRC), an Asian - Pacific, woman -owned firm; and Diaz Consultants, Inc. (DCI), a Minority and Disadvantaged Business Enterprise. WRC is experienced in construction documentation; plans, specifications, and estimates; concept planning; preliminary and final design tasks; and construction support for infrastructure projects. DCI provides geotechnical design and construction services throughout the State of California for a wide array of project types, including transportation, water infrastructure, Industrial, institutional, airports, ports and harbors, and environmental. Declarations, per the RFP requirements, are: Hill guarantees that the proposed personnel are committed to the project as we have presented in this proposal and shall not be removed or replaced without the City's written consent. Hill also declares that the only person, persons, company, or parties interested in this proposal as principals, are named herein; that this proposal is made without collusion with any other person, persons, company, or parties submitting a proposal; that It is in all respects fair and in good faith without collusion or fraud, and that I have full authority to bind Hill to any resulting agreement. We are excited about working with you to make this project a success. For any further information or correspondence please contact me on my cell phone at (909) 262 -4779, in my primary office at (909) 527 -8580, our Irvine location at (949) 474 -2908, or via email at michaeltahan @hillintl.com. Sincerely, Hill International, Inc. A ��adR A Michael Tahan Senior Vice President 25E -35 City of Santa Ana 1 Public Works Agency Construction Management Services for the First Street Bridge Replacement over the Santa Ana River January 20, 20111 Project No. 06 -1723 PART A: Consultant Qualifications TABLEOFCONTENTS Cover letter SECTION Organization and Credentials of the firm ........................ 1 Proposed Staff ............... ............................... 2 Understanding of the Project .. ............................... 3 Schedule Project Experience ........... ............................... 4 Appendices Resumes Forms h�L< City of Santa Ana I Public Works Agency First Street Bridge Replacement I Construction Management 25E -36 Organization and Credentials of the Firm Introduction to Hill International,inc. I 1 l 11111 1 Hill International, Inc. (Hill) is a leading international construction consulting firm that provides construction management, program and project management, cost engineering and estimating, quality assurance, inspection, scheduling, claims analysis, innovative dispute resolution, and staff augmentation services. Hill is also a leader in construction claims management. Hill has the expertise and experience to manage major projects from concept to successful completion. Founded in 1976 as a multi- disciplined management consulting firm that helps construction participants minimize risks, Hill has developed a reputation for our innovative approaches to preventing and resolving construction schedule and cost overruns. We offer public and private clients a full spectrum of construction- related services that enable them to complete construction on time and within budget while minimizing claims and other problems. Hill has built its presence in California over the past 20 years and has established offices in Irvine, Los Angeles, Ontario, Riverside, Sacramento, and San Ramon. Irvine serves as our Western Region Headquarters, with approximately 150 local staff. We have provided quality construction services to a long list of California agencies, counties, and cities on their most important projects. We are equally excited about the current opportunity to work with the City of Santa Ana. Below is a summary listing of some of our local clients and project successes. Proven Track Record of Success Representative Clients • OCTA • Port of Los Angeles • City of Inglewood • City of Carson • County of Los Angeles • City of Loma Linda • City of Moreno Valley • Placer County • City of Redlands • Caltrans District 4 • City of Anaheim • Caltrans District 7, 8, and 59 Representative Projects • Sand Canyon Ave Grade Separation • Harry Bridges Boulevard • La Tierra Bridge Widening • 1- 405 /Wilmington Interchange • RE /Specialty Bridge Inspections • Mountain View Bridge • Nason Street Bridge at SR -60 • Dick Cook /Miner's Ravine Bridge • Alabama & Orange Street Bridge • San Francisco - Oakland Bay Bridge • Gene Autry Way /1 -5 (West) • Hwy 138,1 -5, SR -14, SR -405, SR -91, SR -605, SR -710, SR -110, SR -60, SR- 125 /Hwy 54 City of Santa Ana I Public Works Agency Page J 1 First Street Bridge Replacement ( Construction Management 25E -37 A'1 Proposed Staff Hillis proposing a team of seasoned professionals to provide the City of Santa Ana with the confidence that it will receive the expert construction management, resident engineering, and inspection services required to make the First Street Bridge Replacement a successful project. The key personnel on our proposed team includes Sean Rouhani, PE as your construction manager /resident engineer, and Jose Burbano, EIT as construction inspector. These two key personnel shall be supported, as- needed or required, by a team of specialty support staff. These support staff consist of specialty inspectors, office engineers, project controls /schedulers, and public relations/ outreach. All of our proposed positions are shown on the Organization Chart below, resumes are presented in the appendix, and a chart showing relevant qualifications is provided on the following page. Key Personnel Sean Rouhanl, PE— Construction Manager /Resident Engineer (RE). Mr. Rouhani has more than 28 years of program management, project management, construction management, and resident engineering experience in interchanges, freeways, structures, grade separations, railroads, highways, roadways, and structures construction in flood control channels /waterways, including seven years with Caltrans' Division of Structures. He gained his experience working for local cities, counties, departments of transportation, and transportation authorities. He has been a construction manager /RE on over Organization Chart s $800 million in projects for roadway widening, road reconstruction, road realignment, channel ` tit reconstruction, bridge widening, and widening i construction over and in flood control channels. Jose Burbano, EIT— Construction Inspector. Mr. Michael Tahan, Principal (NIL) Burbano is a civil engineer with more than 12 years zouheirSafeh, PE (HIL) of construction management experience working Timothy T. Wassit, PE (HIL) d with bridge and roadway projects, including work CONSTRUCTION as an assistant resident engineer on Caltrans and Sean Rouhani, PE (HIL) MANAGER /RE other public works transportation projects. His I� structures inspection experience includes bridge CONSTRUCTION INSPECTOR construction in flood control channels, precast/ prestressed girders, bridges, retaining walls, box Jose Burbano, EIT (HIL) culverts, CIDH piles, shoring and excavations, cast - in -place post- tensioned concrete box girders, and OFFICE steel structure bridges. As a roadway inspector Kofi Baryeh, PE (DCI) (DBE) he has worked on roadway paving, drainage, Lan weber, Ph.D., PE (WRC) (UDBE) traffic signal,. and electrical systems, as well as implementing SWPPP /WPCP and safety measures. RESOURCE TEAM (AS-NEEDED SUPPORT) Both Mr. Rouhani and Mr. Burbano have worked Dennis McCollum (NIL) Tony Chu, EIT (NIL) Construction Inspector Structures /Roadway on a number of similar projects that have included JaWerGuzman (NIL) Inspector work in flood control channels. They understand Construction Inspector Jim Landfried, EIT(HIL) the key requirements and ramifications of working Gabriel Flores (NIL} Office Engineer within such an environment and accounting for �1 Electrical Inspector Philip Law, PE(NIL) LLEGEND,, i wet and dry conditions. They have also worked Dion Castro, REA I (HIL) CPM Scheduler SWPPP Inspector Vanessa Barrientos(NIL) projects that re keeping on similar h required k in NIIl (HIL) p j q p g traffic Diaz (DCI) -Steve lodge (NI!) PR /Outreach (vehicle and pedestrian) flowing safely through WRCPRC) Public Safety Officer A construction zones and maintaining safe detours. City of Santa Ana I Public Works Agency Page 2 First Street Bridge Replacement I Construction Management 25E -38 Understanding of the Project Technical Understanding The First Street Bridge Replacement Project over the Santa Ana River will include the removal and replacement of the two existing structures (north and south structures). It is crucial to maintain one through - lane in each direction during the construction of the First Street Bridge. The project is to be completed in three stages, including the demolition of the north structure. The construction management team forthis work shall provide a resident engineer /construction manager and all support staff, which shall include office management and labor compliance, project control and scheduling analysis, structures inspection, water line relocation inspection, and roadway construction inspection, including irrigation and planting. Stage T Construction Stage 1 construction shall include the following construction activities: • Redirect all traffic onto the existing south structure, one lane in each direction • Remove existing signs and post at First Street • Remove existing conflicting striping • Install temporary K -rail per Caltrans standards • Install new signs per plan • Install temporary striping per plan • Start street improvements on the north side • Demolish the existing north structure, including superstructure and substructure. Existing piles shall be cut off one foot below the channel invert. • Construct the new structure (foundation work shall take place during the dry season, April 30 to October 1) First Street Typical Section Diagram First Street Elevation r o7' STAGE 1 BRIDGE CONSTRUCTION • Construct the retaining wall at the northeast quadrant First Street Stage 2 Bridge Construction Cross Section City of Santa Ana I Public Works Agency Page 14 First Street Bridge Replacement I Construction Management 25E -39 Stage 2 Construction Stage 2 shall include the following construction activities: • Switch traffic to the north side of First Street • Remove conflicting signs and striping • Install temporary K -rails per Caltrans standards • Install new signs per plan • Start improvements on the south side • Demolish the existing south structure, including superstructure and substructure, Existing piles shall be cut off one foot below the channel invert. • Construct the new structure (foundation, work shall take place during the dry season, April 30 to October 1) • Complete construction of the 16 inch water reclamation line and tie -ins • Construct the retaining wall on the southeast quadrant of the bridge Stage 3 Construction Stage 3 shall include the following construction activities: • Remove existing conflicting striping • Install delineators • Install temporary striping • Place traffic on both north and south side of new structure • Complete the work in the median (closures pour) • Complete punch list • Complete irrigation and landscaping First Street Stage 2 Bridge Construction Cross Section Typical Section First Street Elevation NNUL City of Santa Ana I Public Works Agency First Street Bridge Replacement j Construction Management 25E -40 Page 15 Structures Technical Understanding The existing abutments at the First Street Bridge will move forward to accommodate a three -span structure. The new structure will have ten pre- cast /pre - stressed (PC /PS) Bulb Tee concrete girders, which will be 4' -8" tall, placed on seat type abutments. The new structure is 92 feet wide and 320 feet long with three spans of 100 feet, 120 feet, and 100 feet each. The new structure will have an eight foot sidewalk on both sides with a four foot raised median. Both abutments are constructed on a 2' -6" high, eight foot wide, and approximately 98 feet long spread footing resting on 20 inch pre -cast, pre - stressed concrete piles. These piles are ten straight and ten battered. Piers 2 and 3 are constructed on 2' -6" high, six feet wide and 94 feet long spread footings, which are constructed on 38 piles, each with six battered piles on each end. ;a Utilities around the foundation area include: • 84" RCP sewer (to be protected in place) • 16" water main on bridge (to remain in place during Stage 1 construction and relocated during Stage 2 construction) • Fiber optics (to be protected in place) • OH electric (to be relocated by others) • 6" sub drain to be removed and relocated • 72" GWRS line (to be'protected in place) • 18" RCP storm drain (to be protected In place) Retaining Wall and Sound Wall Detail The retaining wall at abutment 1 is a mechanically stabilized earth (MSE) wall approximately 288 feet long, resting on leveling pads. The retaining wall at abutment 4 consists of: • Type 5 SSW, which is constructed on a spread footing. This retaining wall is approximately 72 feet long and requires 2' -6" of over - excavation under the footing. • MSE wails are approximately 398 feet long and rest on a leveling pad. There will be a sound wall constructed on top of this TYP1cAL SECT1oN First Street Bridge Typical Section nrnvs- r��• *K. M loll i Retaining Wall Cross Section 1"Itt City of Santa Ana I Public Works Agency First Street Bridge Replacement I Construction Management 25E -41 Page 16 retaining wall, varying in height from 6' -4" to 16' -4" high. The last 14 feet of the sound wall is constructed on a trench footing. Anticipated Construction issues and Resolutions In the table below we have identified general construction Issues we anticipate for this project and have provided our proposed resolutions to these issues. Construction Issue - Resolution Utility Relocation Issues 0 Set up early Pre - Construction and Utility Meetings • Request work plans with timelines • Pothole each utility prior to start of operations • Perform QA survey of each relocation Citizen and Business -_..� 0 __ -Stay proactive�_ -__„_ Complaints Keep locals informed of schedules and revisions • Keep Authority informed at all times • Maintain proper and thorough documentation • Expedite resolution _ a Proper use of City's Public Outreach (PR) /be respectful and responsive Detour Modifications 0 Maintain and monitor detours often • Keep City informed of potential issues • Expedite approval of any changes and coordinate with City • Monitor detours continuously • Keep detours clean and maintain proper signage • Modify detours to fit field conditions • Monitor traffic control to accommodate improvements /reduce bottlenecks 0 Maintain bike trail access /use during construction Local Business and a Open accesses to residents and businesses ASAP Residence Access 0 Maintain continuous operations while working in sensitive areas _ • Seek alternatives with contractor Dust and Noise • _ Establish a monitoring plan during pre - construction phase • Implement contract monitoring plan • Continuous use of water trucks a Use of soil stabilization and erosion control on disturbed areas Contractor Potential Claims a Partner with contractor • Elevate issues immediately if necessary • Maintain proper and factual documentation 0 Create /update as -built (actual) vs. as- planned (proposed) schedule Demolition Plan Set -up pre - construction meeting with the contractor • Explore the removal method. Request a presentation by the contractor. • Discuss the removal plan with the project designer and Caltrans oversight • Monitor the demolition closely to avoid potential damage to the existing facilities • Review and inspect the temporary support system Coordination with orange 0 Involve the County Inspector early in the game County Flood Control • proactive and effective communication t • Acquire approval of the work plan by the County •� Request the County Inspector attend the construction meeting City of Santa Ana I Public Works Agency Page 17 First Street Bridge Replacement { Construction Management 25E -42 Construction Issue Resolution Dry Season work • Substructure work to be completed within the Dry Season • Project needs to be awarded prior to April 10th to allow the contractor to work in the channel for 6 months • Close review of contractor's schedule Approach Hill shall provide a qualified Team of construction management personnel to provide the services required by the City during the pre - construction, construction, and post - construction phases of the First Street Bridge Replacement project. Our construction manager /resident engineer, Sean Rouhani, PE, is a former Caltrans employee who has been providing his expertise as a Project and Construction Manager and Resident Engineer on major highway and freeway construction projects for over 28 years. He has been a Project Manager working with Caltrans Districts 7 and 8. His prior experience Includes the Del Arno Boulevard Overcrossing over the Dominguez Channel, a project that was very similar to the First Street Bridge Replacement project. A second project in the Dominguez Channel included improvements to a portion of the channel that were also very similar. Based on his past experiences, Mr. Rouhani has the knowledge and understanding of bridge replacement construction, including Caltrans and FHWA guidelines, to lead your prc Full Contract Administradon • Schedule /Cost /Quality Control • Progress /Status Reports • . CCO`Review /Process /Recommend Approval • Monthly Payment Request Review /Process Coordinate Phase /Project Closeout IM-__ • Contract Administration Assistance • 'Project Plans /Standards Compliance • SWPPP Review /Compliance • CalOSHA Review /Monitor /Compliance • Inspector's_ Diary • CCOReview /Analysls Assistance • Submittal /RFI Review • As -Built Plan Review • Public Relations Assistance oject's success. Additionally, Jose Burbano, as construction inspector, will apply his multitude of roadway and structures inspection experiences to fulfill his duties and responsibilities on the project. His responsibilities will include those shown to the right. Quality, Schedule, and Budget Control Methods Hill provides project controls, estimating services and management information systems services to clients across the construction industry. Hill has successfully tailored information systems to the reporting needs of the owner. This includes tracking and reporting of schedules, financials, and technical and quality parameters. We employ unique systems to control, coordinate, process, and retrieve pertinent project information aimed at controlling scope, cost, and schedule. Hill provides computerized document control software to record and manage the flow of paperwork throughout the project. Hill provides access to owner and key parties, as well as training, to provide an h 1 11 L City of Santa Ana I Public Works Agency Page 18 First Street Bridge Replacement I Construction Management 25E -43 open line of traceable communication between parties and to always keep the owner informed. With Hill's project control systems, managing and coordinating change orders and time /cost- analysis assures owners that they are charged fairly for incremental work and are protected from paying for work that has been deleted due to change orders. The key is to resolve any change -order issues quickly so the project avoids delay and resulting cost overruns. Hill International has successfully prepared cost estimates on projects ranging from the thousands to the billions of dollars in support of planning, design, and construction, as well as support in the resolution of claims. Our Project Controls Department ensures the accurate estimation of construction costs by becoming a partner with the assigned A/E team with one goal: provide a design that is within budget, on time, and meets the design goals of the owner. Our approach to estimating is simple— provide as much detail as possible in a well- organized manner. hill's estimating services include program budget estimates, conceptual estimates, progress design estimates, and estimating support during construction. i ` Hill's time management and scheduling services use state -of -the art computer systems to develop a master project schedule in addition to individual schedules for each project. We sequence construction to maximize value and minimize site disruptions. Design phase scheduling covers the development of 1 all design phase activities including: team review /coordination meetings, milestone delivery dates for all project deliverables, cost estimates, and owner approvals. At the beginning of the construction phase, i Hill's scheduler works with the contractor to develop a detailed construction schedule in order to identify any constraints in meeting the contract requirements and to validate that the contractor has sufficiently developed the sequencing and phasing of all construction tasks. On a regular basis (weekly /monthly), I we review the construction schedule with the contractor to identify any problems and to assist in the ► development of a detailed time line that helps short range implementation of the detailed schedule. If the review detects an item that may delay the project, we work with the contractor to develop a recovery schedule as required to maintain contractual requirements for completion. EXHIBIT "C" Cost Proposal i. itemized Estimated Breakdown for CM Services A. Personnel by Classiilcatlon /Responsibility The following cost proposal assumes that the Contractor will have idle time due to rainy seasons. TOTAL ESTIMATED PERSONNEL COST $ 734,698.00 B. Additional Resident Engineer and Inspection Services it No Idle Time is Utilized by the Contractor and Subject to City Approval. Reimbursables Quantity Cost_ Construction Manager /Resident Engineer As Needed $170.00 / hour Construction Inspector As Needed $130.00 / hour Category Subtotal $52,802.00 Subtotal of A and 8 = $ 787,500.00 City of Santa Ana I Public Works Agency Page ( 1 First Street Bridge Replacement I Construction Management 25E -45 Estimated Hours Personnel Hourly Rate by Category CM /RE Construction Manager /Resident Engineer $ 170.00 1,248 Subtotal $ 212,160.00 Inspections Construction inspector $ 130,00 3,120 Subtotal $ 405,600.00 Category Subtotal $ 617,760.00 Office Engineering /Project Controls Diaz Consultants - DBE subconsultant Office Engineer /Project Controls /Office Assistance As Required Subtotal $ 52,479.00 WRC Consulting LIDBE subconsultant Office Engineer /Project Controls /office Assistance $ As Required Subtotal $ 64,459.00 Category Subtotal $ 116,938.00 TOTAL ESTIMATED PERSONNEL COST $ 734,698.00 B. Additional Resident Engineer and Inspection Services it No Idle Time is Utilized by the Contractor and Subject to City Approval. Reimbursables Quantity Cost_ Construction Manager /Resident Engineer As Needed $170.00 / hour Construction Inspector As Needed $130.00 / hour Category Subtotal $52,802.00 Subtotal of A and 8 = $ 787,500.00 City of Santa Ana I Public Works Agency Page ( 1 First Street Bridge Replacement I Construction Management 25E -45 11. Contingency Services Proposed Personnel by Proposed Proposed Classification /Responsibility Hourly Rate Hours Total CM /RE Construction Manager /Resident Engineer $ 170.00 600 $ 102,000.00 Inspections Construction Inspector $ 130.00 600 $ 78,000.00 Ill. Grand Total Grand Total of I, and II. above = $ 467,500.00 Notes: 1. Construction duration is estimated at 24 months. 2. Inspectors will be fully equipped with vehicles, computers, tools, and equipment required to perform their tasks (included in our hourly rate). 3. Overtime rates are calulated at 1.5 times the hourly rate for construction Inspectors. All overtime shall be pre - approved by the City. 4. Client to provide field office and field office equipment. 1" ftt City of Santa Ana I Public Works Agency Page 12 First Street Bridge Replacement I Construction Management 25E -46 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: AGREEMENT WITH BACK TO NATIVES RESTORATION TO ESTABLISH A NATIVE PLANT NURSERY AT THE SANTIAGO PARK NURSERY SITE 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 with Back to Natives Restoration to establish a Native Plant Nursery at the Santiago Park Nursery, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION Back to Natives Restoration (BTN), is a California Non - Profit Public Benefit Corporation (501 c 3). BTN is dedicated to the restoration and conservation of Orange County and California wild lands, through education and restoration programs featuring native plants and biodiversity as a centralizing theme. Back to Natives Restoration was first introduced to the City of Santa Ana Parks, Recreation and Community Services Agency (PRCSA) last year by Park Santiago community members in the hopes of establishing a relationship with the non - profit to further develop the agency's goal of maintaining high quality native landscapes. The agreement for BTN to transform the Santiago Park nursery into a native plant nursery will support restoration activities in Santiago Park and throughout the City. BTN will identify and target native plants for propagation and install and manage a native plant nursery at the Santiago Park Nursery where targeted species can be grown. BTN will also work with PRCSA to plan and implement facility improvements at the Nursery that will maximize the use of the site for the successful propagation of native plant species. BTN will provide the City with plant materials grown at the Native Plant Nursery to be used for restoration, education and volunteer projects. Through this partnership with PRCSA, Back to Natives hopes to increase public understanding and appreciation of our quickly diminishing resources and to inspire the community to use resources wisely and respectfully. Back to Natives will provide this service free of charge in exchange for the use of the Santiago Park Nursery area. This proposed partnership was presented and discussed at the February 23, 2011 Board of Recreation and Parks meeting and members remarked that this partnership is both creative and positive for the community. 25F -1 Back to Natives Restoration March 21, 2011 Page 2 FISCAL IMPACT There is no fiscal impact associated with this item. f j rl� Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency 25F -2 DO NOT RECORD OPERATING AGREEMENT BETWEEN THE CITY OF SANTA ANA AND BACK TO NATIVES THIS AGREEMENT ( "Agreement ") is made and entered into this 21" day of March, 2011, by and between the City of Santa Ana, a charter city and municipal corporation, duly organized and exiting under the constitution and laws of the State of California, herein referred to as "City ", and Back to Natives Restoration, a California non - profit public benefit corporation, herein referred to as "BTN ". RECITALS: A. City owns the real property and facilities located at 600 E. Memory Lane, Santa Ana, California, commonly known as Santiago Park. B. The City desires to retain a consultant having special skill and knowledge in the field of restoration and conservation, to transform the Santiago Park Nursery into a native plant nursery C. BTN is knowledgeable in the field of habitat restoration and preservation through education and restoration programs. D. BTN represents that it is qualified to provide a program to implement and operate a native plant nursery and support restoration activities in the Park and throughout the City. E. In undertaking the performance of this Agreement, BTN represents that it is knowledgeable in this field and that any service performed under this Agreement will be performed in compliance with all required professional standards of conduct and in accordance with the terms and conditions of this Agreement, including all attachments hereto. NOW THEREFORE, in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all terms and conditions hereof, the parties agree as follows: 1. Use of Facilities. City hereby licenses the use of the Santiago Park Nursery to BTN on all of the terms and conditions set forth in this Operating Agreement. 2. Term. The Term of this Agreement (the "term ") shall commence on April 2, 1011, and shall expire on March 31, 2012, if not terminated earlier pursuant to the 25F -3 DO NOT RECORD terms of this Agreement. This Agreement is subject to four (4) one -year renewals upon the written approval of the City Manager. 3. BTN Responsibilities. As consideration for this Agreement, BTN shall: a. Identify and target native plants for propagation and install and manage a native plant nursery to grow targeted species at the Santiago Park Nursery. b. Work with City staff to plan and implement facility improvements at the native plant nursery that will maximize the use of the site for successful propagation of native plant species. c. Provide the City with plant materials grown at the native plant nursery to be used for restoration and education projects throughout the City. d. Establish a methodology for propagation of each species using the findings documented by volunteers and compile data collected to produce a Propagation Manual, which will be provided to City in an electronic format for future City reference. e. Conduct presentations regarding the successful and unsuccessful propagation methods identified from research findings as well as other educational activities related to the plant propagation process, restoration accomplishments, and other activities. f. Coordinate with the City to develop a regular schedule of activities that BTN will conduct in the nursery and at Santiago Park Nature Center, including restoration activities, volunteer work projects, abatement of weeds and non - native species, educational programs aimed at promoting sustainability, planting of native plants, habitat restoration and conservation. g. Work with the City to promote activities and recruit volunteers for propagation and restoration activities. h. Provide contact information for volunteers and maintain volunteer records, including volunteer activities, number of volunteers, days and times, accomplishments, etc. i. BTN shall maintain staffing levels sufficient to comply with its responsibilities pursuant to this Agreement. The facility shall be staffed by BTN at all times during Operating Hours. Operating Hours shall be from Sam to IOpm, Monday through Friday; and from 8:OOam to 8:OOpm on Saturday and Sunday. BTN shall be responsible for supervision of the entire nursery premises. 2 25F -4 DO NOT RECORD j. BTN will maintain the nursery facilities in a safe and clean condition, order and repair, including paying at its own cost and expense for custodial services. 4. City Responsibilities. a. City shall pay for all utility services furnished to the nursery for the use, operation and maintenance of the nursery during the Term of this Agreement, or any extension thereof, including paying for all charges for heat, gas /water, trash, electricity charges used during the term of this agreement. BTN will be responsible for payment of other utilities not listed herein, including payment of telephone and cable charges. b. City will be responsible for the maintenance of all Park areas excluding the nursery as set forth in Section c. In the event of damage, destruction or vandalism by third parties of any of the premises, the City will contribute to the repair and restoration as provided in section 9 of this agreement. 5. BTN's Equipment and Personal Property. BTN shall hold title only to BTN's equipment or personal property, but not plant material, placed on the Facilities by BTN. All of BTN's equipment or personal property shall remain the property of BTN and are not fixtures. BTN has the right to remove all of BTN's equipment or personal property at its sole cost and expense on or before the expiration or termination of this Agreement; provided that such removal shall be done in a professional and careful manner, without interference or damage to any other equipment, structures or operations on the Premises, including the use of the Premises by City or any of City's, assignees, licensees or lessees. 6. Facility Alterations. BTN agrees all changes or modifications to any of the Premises require prior written approval of the Executive Director of Parks, Recreation and Community Services. All requests for such changes or modifications shall be submitted by BTN to City by utilizing its current Field/Facility Modification Request process, and City reserves the right to approve or deny such requests. A copy of the City's current Field/Facility Modification Request process form is attached hereto as Exhibit 2. 7. Indemnification, Defense Hold Harmless. BTN shall protect, defend, indemnify and save and hold harmless City, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with BTN's performance of this Agreement or BTN's failure to comply with any of BTN's obligations contained in the Agreement by BTN, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of 25F -5 DO NOT RECORD City. In the event City is named as codefendant, BTN shall notify City of such fact and shall represent City in such legal action unless City undertakes to represent itself as codefendant in such legal action, in which event City shall bear its own litigation costs, expenses and attorney's fees. BTN 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 City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 8. Insurance. a. BTN shall obtain and furnish to City, a policy of general public liability insurance, commercial general liability and property insurance covering the nursery facilities and naming the City, its officers, agents and employees as additional insured(s). The policy 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 BTN's operations in the performance of this Agreement, including, without limitation, acts involving vehicles, and shall provide coverage in not less than the following amount: combined single limit bodily injury, personal injury and property damage, liability, of $1,000,000 per occurrence. The policy shall include an Additional Insured Endorsement, which shall name City, its agents, officers, employees and volunteers as Additional Insureds, and shall specifically provide that any City insurance coverage which may be applicable shall be deemed excess coverage and that BTN's insurance shall be primary, and contain a standard separation of insureds provision. b. The following requirements apply to the insurance to be provided by BTN pursuant to this section: (i) BTN shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. 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. C. If BTN 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. M 25F -6 DO NOT RECORD 9. Indemnification Regarding Hazardous Material. BTN covenants and agrees to indemnify City from and against any contamination of the Property with Hazardous Materials occurring after commencement of this License. BTN further agrees to defend and hold harmless the City from and against any and all actions, agreements, attorneys' fees, causes of action, claims, contracts, costs, covenants, damages, debts, demands, expenses, judgments, lawsuits, liabilities, liens, losses, obligations, and orders which arise during or after the term of this License related to the existence of Hazardous Materials (from whatever cause) on the Property or in the groundwater on or under the Property except for the cost of any remediation of Hazardous Materials deposited in the soils of the Property by the City or its employees, agents and contractors. This indemnification includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material present in the soil or groundwater on or under the Property. As used herein, the term "Hazardous Material" shall be interpreted broadly to mean any hazardous or toxic substance, material, or waste which now is or hereafter becomes regulated by any local governmental authority, the State of California or the United States Government. 10. Taxes. The parties agree that if the Facilities are assessed any taxes or similar fees or charges due to the activities of BTN or BTN's permitted users, then BTN shall bear the entire cost of said taxes, fees or charges. 11. Liens. BTN will not permit any mechanics' or materialmens' or other liens to stand against the Facilities by reason of any use or occupancy by BTN, or any person claiming under BTN. 12. Non - Discrimination. BTN shall not discriminate as to the employment of persons relative to the use or operation of the Property, nor shall it discriminate as to the persons or entities which may use the Property, on the basis of race, color, national origin, ancestry, gender, disability, sexual orientation, or medical condition, in violation of state or federal laws, or on any other basis otherwise prohibited by state or federal law. 13. Termination of Agreement This Agreement shall be terminable by the City upon the occurrence of any of the following: A. Use of Facilities. BTN ceases operation of a native plant nursery; or, B. Unauthorized Transfer. BTN transfers or attempts to transfer any rights or interest in the Property in any fashion without the City's consent. 14. Force Majeure. Should the performance of any act required by this Agreement to be performed by either City or BTN be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be 5 25F -7 DO NOT RECORD extended for a period equivalent to the period of delay, and performance of the act during the period of delay will be excused, provided, however, that nothing contained in this section shall excuse the prompt payment of compensation by BTN as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, City or BTN, required to perform the act. 15. Access. City shall provide access to the nursery facilities to BTN, and its employees, agents, contractors and subcontractors, twenty -four (24) hours a day, seven (7) days a week. City represents and warrants that it has full rights of ingress and egress to and from the nursery facilities, and hereby grants such rights to BTN to the extent required to maintain, and operate BTN's program within the facilities. BTN's exercise of such rights shall not cause undue inconvenience to City. 16. Restrictions on Assignment. This Agreement is entered into specifically with the parties in mind. Therefore, neither party shall assign any or all of its rights under this License without the prior written consent of the other party, in its sole and absolute discretion. 17. Notices. All written notices required to be given pursuant to the terms hereof shall be delivered to the following addresses, or to such other address as the receiving party may from time to time specify by written notice to the other party: To BTN: Back To Natives Restoration P.O. Box 6539 Irvine, CA. 92612 -6539 Attn: Reginald 1. Durant, Program Director Telephone No.: (949) 509 -4787 Fax No.: () * * * * ** E-mail: Info@backtonatives.org To the City: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Attn: Clerk of the City Council Telephone No.: (714) 647 -6520 Fax No.: (714) 647 -6956 With a copy to: Executive Director of the Recreation & Comm Services Agency 26 Civic Center Plaza Santa Ana, California 92701 Telephone No.: (714) 571 -4200 Fax No.: (714) 571 -4221 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 3 25F -8 DO NOT RECORD 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. 18. Contract Administrator. The Executive Director of the Parks, Recreation and Community Services Agency, or his/her designee, shall be City's Administrator for this Agreement and all approval and notices required to be given herein shall be so directed and addressed. 19. Construction. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments hereto. 20. Governing Law. This Operating Agreement shall be construed and interpreted in accordance with and shall be governed and enforced in all respects according to the laws of the State of California, without regard to conflicts of laws principles. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 21. Entire Agreement. This Operating Agreement contains the entire understanding of the parties and supersedes any and all other written or oral understanding. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. 22. Captions. Any captions or headings to the Sections and subsections in this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of validity of this Agreement or any provision hereof. 23. Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable term or provision had never been contained herein. 24. No Waiver. Any waiver, consent or approval by either party of any breach, default or event of default of any provision, condition or covenant of this agreement must be in writing and shall be effective only to the extent set forth in writing. No waiver of any breach, default or event of default shall be deemed a waiver of any later breach, default or event of default of the same or any other provision of this Agreement. Any failure or delay on the part of either party in exercising any power, right or privilege under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude any further exercise thereof. 7 25F -9 DO NOT RECORD 25. Rights and Remedies. No right or remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other right or remedy given hereunder or hereafter existing at law or in equity. The exercise of any one or more rights or the election of any one or more remedies by any party shall not constitute a waiver of the right to exercise other available rights or pursue other available remedies. In the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 26. Non - Recording. Neither party shall record this Operating Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Operating Agreement to be executed by and through their authorized officers the day, month and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency CITY OF SANTA ANA DAVID N. REAM City Manager BACK TO NATIVES RESTORATION: REGINALD I. DURANT Program Director Tax ID 25F -10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: AMENDMENT TO AGREEMENT WITH DEKRA -CITE - LIGHTING AND MAINTENANCE OF ARTIST VILLAGE TREES �� CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED Q As Recommended � As Amended Q Ordinance on Ise Reading Q Ordinance on 2ntl 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 amendment to the agreement with Dekra -Cite in the amount of $22,000 for a total amount not -to- exceed $47,000, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION In December of 201 O, the Artist Village tree lights were removed for routine tree trimming and new lights were replaced on eight out of the twelve trees. The new LED low voltage lights are energy efficient, brighter, and provide normal tree growth by utilizing stretchable strings. For the holidays, snowfall tubes were additionally added to the trees on Second Street/Sycamore and Second Street/Broadway. A request from the Downtown community to light the four remaining unlit trees has been received. Dekra -Cite, a Santa Ana based company, has submitted a proposal to provide the requested services_ Dekra -Cite has provided services to Santa Ana for over five years and recently installed the lights on the eight Artist Village trees. To provide the overall consistency and ambiance of the area, staff recommends completing the lighting on the remaining trees_ The amendment would include the lighting of four trees, as well as labor and maintenance fees on existing lights for asix- month period. 25G -1 Amendment to Agreement - Dekra -Cite March 21 , 201 1 Page 2 FISCAL IMPACT Funds are available in the Downtown Maintenance Fund account (no. 40718842 - 62300). Na ►ncl�l wards Interim Exe utive Director Community Development Agency NTE /TE /lo Exhibit: 1 _ Amendment to Agreement 25G -2 APPROVED AS TO FUNDS AND ACCOUNTS: M�c� �,1�r ,�� Francisco Gutierrez u,� Executive Director Finance &Management Services Agency SECOND AMENDMENT TO AGREEMENT FOR REMOVAL AND INSTALLATION OF BANNERS THIS SECOND AMENDMENT TO AGREEMENT, made and entered into this 21s` day of March, 201 1 by and between DEKRA -CITE, a California corporation (hereinafter "Contractor "), and the City of Santa Ana, a charter city and municipal corporation (hereinafter "City"). RECITALS A. The City and Contractor previously entered into an Agreement for Removal and Installation of Banners ( "Agreement ") on May 15, 201 O (N -201 0 -043) in order to retain a contractor having special skill and knowledge in the field of manufacturing, removing and installing decorative street banners. B. The parties amended said Agreement on September 30, 201 O to include the removal and installation of lighting in the trees in downtown Santa Ana_ C. Based upon a request from the community, the City desires to amend the Agreement a second time to increase the Scope of Services and Compensation. 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. Section 1 of the Agreement, "Scope of Services ", shall be amended to include the installation of LED low voltage mini lights on the remaining four (4) interior trees located on 4`�' Street and 2nd Street (Artist's Village). Contractor shall purchase and install new low voltage lighting on 2nd Street trees. Contractor shall also maintain the existing lighting in the Artist's Village Trees, including but not limited to materials, manpower and equipment required to perform maintenance, replace outages, and re -hang loose strands on the trees. Contractor's Proposals are attached hereto and incorporated herein as Exhibit A_ 2. Section 2, "Compensation ", shall be amended to increase compensation with an additional Twenty Two Thousand Dollars ($22,000) for a total not to exceed contract price of Forty Seven Thousand Dollars ($47,000). 3. All other terms and conditions included in said Agreement as amended shall have the same force and effect /// /// ��� EXHIBIT 1 25G -3 I1V WITNESS WHEREOF, the parties hereto have executed this Second Amendment the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Lisa Storck Assistant City Attorney 2 25G -4 CITY OF SANTA ANA David N. Ream City Manager DEKRA -CITE MIKE STERLING General Manager Tax ID# ���r!' ��,t� PROPOSAL PRPO29395 C.l�c7orati�on Erre-rova�tfon 3102 W. Alton Ave. Ph. (714) 436 -0705 DATE 3/9/2011 Santa Ana, CA 92704 Fax. (714) 436 -0612 PAGE: 1 www- dekra- lite.com BILL TO: CITY OF SANTA ANA 20 CIVIC CENTER PLAZA, M -25 PO BOX 1988 SANTA ANA CA 92701 GABY LOMELI PHONE (714) 647 -6563 Ext. 0000 FAX (714) 647 -6549 Ext. 0000 SHIP TO: CITY OF SANTA ANA 2ND STREET ARTISTS VILLAGE SANTA ANA CA INSTALL DATE APRIL 2011 REMOVAL DATE N/A PO Number Customer ID Salesperson ID Shipping Method Payment Terms Req Ship Date Master No. SANO25 SJ INSTALL Net 30 O/O /0000 32,472 Quantity Item Number Description UOM Unit Price Extended Price 2 LABORINST Lazge Tree lit with Low Voltage LED Clip Lighting Each $3,058.00 $6,116.00 2 LABORINST Medium Tree lit with Low Voltage LED Clip Lightin €Each $1,529.00 $3,058.00 1 LABORINST Low Voltage Tree Lighiing program Each $5,391.37 $5,391.37 installation and removal 1 SALESDISCOLJNT Specia] City Sales Discount Each ($1,100.00 ($1,100.00) 1 NOTE: Low Voltage Program includes 6 months maintenance Each $0.00 $0.00 Please sign and fax to 714- 436 -0612 Subtotal $13,465.37 Tax $571.73 Freight $0.00 WC' IJropose hereby•trs furnish Product anp/or laUor- compieoEly; In accorrfanoe w1Ml 56oVe spetl6iGatpns „Far the sum.: of Total $ 14.037.1 O SO'76 DEPOSIT DLJE:tiPON P.6CEPTANCi= dF PROPO5AL $ 14,037.10 BALfiNCE AMQUFfT DUE UPON 1N5TAL:lAT1ON O.R DELIVERY.' $O.00 n nat accepted wlcnm. days, ualsproaosac may ne�witnarawtx:; pg�trj.L(te.: Acceptance of ?nRposal: `f'he ifl7Aivldual s(gtiing this.COnt'ractLCC@PCS ttl2 �atxfVe Proppsal. and. cer:tlHes tD [7ekra�lite tliath[i ar stte:is- authorised to etttet:lMO tl9s Contract orr behalf oP Owner, ProPertV: ©caner.'. EXHIBIT A tuati,orFZecingenb Data; @Yr� 25G -5 ""� a � _ INVOICE ORD020114 ����! —_���� Date 12/15/2010 E]b ®ctsratic�ei lnrsc�xticrr -r 3102 W.Alton Ave. Ph: (714) 436 -0705 Santa Ana, CA 92704 Fax: (714) 436 -0612 www.dekra- lite.com BILL TO: CITY OF SANTA ANA 20 CIVIC CENTER PLAZA, M -25 PO BOX 1988 SANTA ANA CA 92701 SHIP TO: CITY OF SANTA ANA ARTISTS VILLAGE SANTA ANA CA GABY LOMELI PHONE (714) 647 -6563 Ext. 0000 TNCTAT.T. T1ATF. FAX (714) 647 -6549 Ext. 0000 REMOVAL DATE PO Number Customer ID Salesperson ID Shipping Method Payment Terms SAN025 SJ SERVICE SPECIAL TERM: Ordered Item Number 1 LABOROTHER Payment July 2011 EXHIBIT A -2 Description 6 Month Maintenance of existing Low Voltage Lighting in the Artist's Village Trees. June 15 -Nov 15, 2011 June 15 -Nov 2011 Req Ship Date Master No. O/O /0000 31,499 Unit Price Ext. Price $7,500.00 $7,500.00 Subtotal Tax Freight Total Amount Due Upon Acceptance of Proposal Balance Due Upon Installation or Delivery 25G -6 $7,500.00 $306.25 $0.00 $ 7, 806.25 $4,056.25 $3,750.00 MARCH 21, 2011 TITLE: AMENDMENT TO AGREEMENT WITH HISPANIC BUSINESS CONSULTANTS - JOB TRAINING AT THE SANTA ANA WORK CENTER �_� CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED � As Recommended � As Amended � Ordinance on �s` Reading (] Ordinance on 2ntl Reading 0 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 Hispanic Business Consultants in the amount of $25,000 for a total amount not -to- exceed $142,675, and extend the term of the agreement to June 30, 2011 , subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION On July 6, 2010, the City Council approved a contract amendment with Hispanic Business Consultants in the amount of $117,675 to provide technical assistance to 85 small business owners_ To date, 85 businesses have been provided technical assistance courses which include Basic Taxes, Financing, Sales, Customer Service, Marketing, Leadership, Personal Development, Strengthening My Business, and Expanding My Successful Business. The courses are targeted to Spanish speaking business owners. There is still a demand from the business community for further technical assistance, and staff is recommending allocating an additional $25,000 to provide additional courses. The additional courses will include afour -week Internet Marketing course, a four -week Sale and Customer Service Course, and aten -week Expanding My Successful Business course. The additional courses will serve an additional 20 Santa Ana small businesses. 25H -1 Amendment to Hispanic Business Consultants March 21 , 201 1 Page 2 FISCAL IMPACT Funds are available in the Workforce Investment Act Rapid Response account (no. 12318756- 62300). Nancy T_ E ards Interim Exec ive Director Community Development Agency N T E /LAO /CDR /sv Exhibit: 1 . Amendment to Agreement 25H -2 APPROVED AS TO FUNDS AND ACCOUNTS: �- c�itec�� ,• Francisco Gutierrez Executive Director Finance &Management Services Agency �� THIRD AMENDMENT TO AGREEMENT UNDER THE WORKFORCE INVESTMENT ACT (AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009) THIS THIRD AMENDMENT, made and entered into this 21$` day of March, 2011, by and between Hispanic Business Consultants ( "Contractor ") and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS A. The City and Contractor entered into that certain Agreement Under the Workforce Investment Act dated February 16, 2010 ( #A- 2010 -025) hereinafter referred to as "said Agreement" for Contractor to provide business owners with technical assistance through courses and seminars. B. The parties amended said Agreement on June 9, 201 O, to update and increase Contractor's Obligations, and amended said Agreement again on July 6, 201 O to update Contractor's Obligations, as well as add more funding. The parties previously also agreed to extend the Term through March 20, 2011. C. The parties hereto now desire to fiu-ther amend and expand Contractor's Obligations, as well as add more funding. WHEREFORE, in consideration of the mutual and respective covenants and promises hereinafter contained and made, and subject to all of the terms and conditions of said Agreement as hereby amended, the parties hereto do hereby agree as follows: 1. Section I "Contractor's Obligations" shall be updated to expand the provision of specialized courses and services, as set forth in the Scope of Worlc, attached hereto and incorporated herein as Exhibit A. 2. Section II "City's Obligations" .shall be amended to add additional funds of Twenty Five Thousand Dollars ($25,000), so that the total amount of Compensation to Contractor under said Agreement as amended shall not exceed One Hundred Forty Two Thousand Six Hundred Seventy -Five Dollars ($142,675) see attached Budget Form and Budget Narrative attached hereto and incorporated herein as Exhibit B. Section III "Time Period of Agreement" shall be amended and extended through June 30, 2011. 4. Except as hereinabove modified, the terms and conditions of said Agreement remain unchanged and in full force and effect. �1:II�j�il i 25H -3 IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to said Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: City Attorney By: Lisa E. Storck Assistant City Attorney CITY OF SANTA ANA, a municipal corporation of the State of California David N. Ream City Manager "CONTRACTOR" Hispanic Business Consultants By: Eduardo Figueroa 25H -4 TECHNICAL BUSINESS ASSISTANCE '�� PROGRAM �p ,�' -' Contract #: A -2070 -025 �(® SCOPE OF WORK Extension program $25,000 Service # events #Santa Ana participants 10 weeks course 1 20 4 weeks course 2 2A� Total 3 44 Note: 1 I , �� Our goal is to serve a total of 25 different participants within 20 businesses. The Spanish business courses will Include both owners and managers. Eduardo Figueroa Program Director & Trainer i�lZ�aliflrGl 25H -5 BUDGET FORM EXHIBIT - B 25H -6 Administrative Program ?;�T4�a1 VI/IA �~ Match /In Kind �Q` `r�p�'yt� lQ v t l vY ,, i *�f.�R_�✓v�l��!�'R.'. !.�' _i tip � l:j \t 1! 1 �l � Y �.i k k 1 a.( 11 5 rJ G � , , l Zt,� • r 5... i { i �5 , •.i'. Salaries* 5,300.00 17,360.00 �,�,�46 O,Q; 3,020.00 Benefits " � r ,'!, 4 , Other (list)* ,_}� ,, _ Total Personnel 5,300.00 17,360.00 '� 49,64pS00 3,020.00 2T�'eai', flia�����siYa3�l$e� . o � : � . , � , , ,,,•,: ;, i „ , . , r l' _, t .1:2,200.00. Rent or user fee* 2,200.00 `ti' , ,;' Utilities '. � ,_, -; ,.' _ Phones 500.00 308.00 �;,,r' '" 808.00 ,_;�,_ :'Y.ti -: r Internet fees a \ ° � CF :��� � _ Parking fees ` °' `" ' z` ' '- �' ;��,,,,.,,. , : y _ Security s ' � K�•t i _ Maintenance '. � �' , �.�: _ Insurance 260.00 �� , + 260.00 Equipment* ; ', _ Rental fees � (, ' r�Y :� \� _ Purchase T � \�'„ ! _ Vehicle lease charges lt. "�,` ! ° . �.` _ Office expenses ''F (consumables) 750.00 �,'. `, 750.00 , t Accounting Services 400.00 't; '+ 400.00 Legal services ` " v< � " :� _ Auditing services 800.00 +� ° =' ""' Y `" � ` 800.00 ,, ,,., ,,Y,, e � Indirect costs � ' r °-' (marketing) 2,000.00 s; �` '� � 2,000.00 Profit (for only) � s'�, � profits _ „�, ,` ,,,� _ Other (books, CDs, F Y 4 DVD, handouts,)* 7,250.00 <# ''�,3�Q p0 •; 1,890.00 YL' (, Total Operating � �� '' t > °+> 2,710,00 11,758.00 �� 5 ,� �,3Q;p QQ 9,108.00 Expenses s� ,. GRAND TOTAL (Total ; Personnel +Total 8,010.00 29,118.00 E , `25,OQ0 Op' °. 12,128.00 Operating Expenses) EXHIBIT - B 25H -6 Budget Narrative and Expenditure Plan Below is a narrative providing a detailed explanation of line items, the computing of finances and the proposed Expenditure Plan. Operations Activities Requested Funds Narrative and Ex lanation p Salaries $ 19,640 HBC will leverage with a $3,020 In -Kind contribution Trainers — coaching $ 17,040 Prepare seminars and workshops, teach, review business plans and coach students. Additional staff time $ 320 Assist participants applying information In their businesses Coordinate marketing campaigns to promote the program, recruit students, create a tentative class schedule. Keep track of files Program manager $ 2,280 reports and materials. Communicate with case managers, students, trainers and ultimately prepare an economic Impact report of the program. Telephone $ O $308 In -Kind contribution Prepare and send e- mails, public announcements, design, print Program Marketing $ 0 and distribute flyers, place ads in Iocai Spanish- speaking newspapers. HBC will leverage with a $2,000 In -Kind contribution Other (list) Participants' materials: $ 5,360 MEE start up kit $ 2,000 This is: 20 kits x $100 (reg. price $165) This means $'1,300 in -kind contribution. GD &DVD $ 600 This is: 24 CD & DVD x $25 (reg. price $45) This means $480 in- klnd contribution. Business plan books $ 500 This is: 20 books x $25 (In Spanish) Other books / CD $ 240 This is: 24 books / CD $1 O (In Spanish) Customer service books $ 440 This is: 44 books x $10 (reg, price $13) This means $132 in -kind contribution. This is: 24 sets x $45 Plus 20 sets x $25 These materials include: Handouts &graduation $ 1,580 binders, with workbook, handouts of each session, pens, name tags, name sign, etc. All participants will receive a diploma of artici ation for the course com leted. HBC is requesting $25,000 to serve: FUNDS REQUESTED $ 25,000 24 participants in two 4 -week courses (12 each) 20 participants in one 10 -week course CMEE EXHIBIT — B F4lspanlc Business Consullenla —Rapid Reaponae /ARRA — Business Asalstence Program, February 2011 25H -7 25H -8 REC�UEST FOR �P COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: ALLOCATION OF FY 2011 -2012 EMERGENCY SHELTER GRANT FUNDS �° �° CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLV: APPROVED Q As Recommended � As Amended 0 Ordinance on 'Ise Reading 0 Ordinance on 2ntl Reading 0 Implementing Resolution 0 Set Public Hearing For CONTINUED TO FILE NUMBER 1 . Approve the proposed FY 201 1 -2012 Emergency Shelter Grant Program. 2. Reallocate $578.95 in prior year Emergency Shelter Grant funds as recommended. 3. Authorize the City Manager to submit the approved program to the U. S. Department of Housing and Urban Development (HUD) for the City's fiscal year 2011 -2012 allocation of Emergency Shelter Grant funds and execute the grant agreement with HUD. 4. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute agreements with non - profit agencies and /or sub - recipients awarded funds as part of the approved program, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION In July 201 1 , the City of Santa Ana will be awarded Emergency Shelter Grant (ESG) funds in the approximate amount of $300,000 by HUD. These funds are made available to states, counties and municipalities to support emergency shelter programs for the homeless. Eligible uses include renovation of emergency shelter facilities, essential services to the homeless (e.g., food and health care), and homeless prevention. A maximum of thirty percent of the total grant may be used for essential services and thirty percent for homeless prevention. Since fiscal year 1987 -1988, the City has actively participated in the ESG program to provide funding to the homeless service organizations. In November 2010, a Notice of Funding Availability was mailed to 48 non - profit providers soliciting applications for FY 201 1 -2012 grant funding. 251 -1 Allocation of FY 2011 -12 ESG Funds March 21 , 201 1 Page 2 Fourteen proposals were submitted from thirteen organizations with funding requests totaling $469,600. Proposals predominately sought funds to offset program administration, homeless prevention, maintenance and operating costs. On January 1 1 , 201 1 , an ad hoc committee (comprised of two commissioners from the Community Redevelopment and Housing Commission, one representative from the Orange County's Community Services- Homelessness Prevention Department and one City staff) conducted applicant interviews to rate and rank the proposals using the following criteria: 1) community need, 2) capacity to provide service, and 3) effective and efficient use of funds. A list of the agencies submitting proposals, the evaluation panel rating, the grant amount for the present year, the requested amount of funding for FY 2011 -2012, and the recommended funding for FY 2011- 2012 is provided in Exhibit 1. Two of the recommended proposals will fund homeless prevention programs, and twelve will fund essential services and operations_ All fourteen proposals are being recommended for funding as follows: ORGANIZATION Dayle McIntosh Center Human Options Interval House Laura's House Legal Aid Mercy House - Emergency Shelter Mercy House - Transitional Shelters Orange County Mental Health Association SMEDA Thomas House Veterans First Villa Center Wise Place WTLC RECOMMENDATION $ 7,000 $ 15,000 $ 24,000 $ 10,000 $ 10,000 $ 34,000 $ 28,000 $ 22,000 $ 22,000 $ 15,000 $ 25,000 $ 10,000 $ 26,000 $ 37,000 Allocation for Essential Services, Prevention &Operations $ 285,000 Allocation for Administration (5 %) $ 15.000 Total /Anticipated Budget for 2011 -2012 $ 300,000 _._ The U. S. Department of Housing and Urban Development has yet to provide the actual allocation for the 2011 -2012 ESG program_ Therefore, based on the actual amount available, 251 -2 Allocation of FY 201 1 -12 ESG Funds March 21 , 201 1 Page 3 including the amount from prior year, any amount over or under the anticipated $300,000 will be proportionately added to or subtracted from each individual allocation. FISCAL IMPACT HUD provides ESG funds directly to the City and will be deposited in the FY 2011 -2012 Emergency Shelter Grant account (no. 13518785 - various)_ Nancy T. ards Interim Exe utive Director Community Development Agency CJ N /NTE /FH /mlr Exhibit: 1: ESG Recommendations 251 -3 APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez a Executive Director Finance &Management ervices Agency d r m o � c �c �. �. a> a> t h C 'O� O 3 ::.. o is �- Q v � o � E �° E � 0 v m -o c �a rn � o. 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N d — C d V w d t N •p s U N � h _= N � N � C •' T {O � `m O C O d � O J m � -� a� V �` E � w � � o � Z p tq O IOA N pa W d � d O O W y .-. y d O O G N 7 7 � � O u- d � H = U O = S � O O � O H C 10 ui O jd N � _ = Iq C � C d a C � A � � �Op rn a`r a`� U O � � N O O S C J J -� � O H H � 5 � N M � tff t0 t� a0 Oi O f� �- P N r� �"! !� '�7 r 251 -4 EXHIBIT 1 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: DONATION OF 17- PASSENGER VANS TO ORANGE COUNTY HIGH SCHOOL OF THE ARTS l 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 Authorize the Finance and Management Services Agency to donate two surplused 17- passenger vans to the Orange County High School of the Arts to support physical education and healthy lifestyle programming. DISCUSSION Established in 1987, the Orange County High School of the Arts ( OCHSA) provides a creative, challenging and nurturing environment that offers bright and talented students preparation for higher education and a profession in the arts. This public charter school currently serves more than 1,550 students in grades 7 -12 from Santa Ana and surrounding communities. Due to the high rates of childhood obesity and Type II diabetes in children and teens, physical education programming is essential. The City has placed a high priority on this public health challenge. The City operates several tennis courts, soccer and baseball fields, and other athletic facilities, including the tennis courts at Santa Ana High School. These two vans were originally donated by the Orange County Transportation Authority for the Senior Mobility Program and have been replaced with newer vans from OCTA. Through creative partnership efforts, additional physical education and healthy lifestyle programming for OCHSA students will be provided by transporting students to the Santa Ana High School Neal Machander Tennis Center and other sports facilities throughout the City. OCHSA will be fully responsible for maintenance and all other operational issues once they take ownership. By increasing the accessibility of OCHSA students to athletic facilities, the City will contribute in a positive way toward the goal of promoting a healthy lifestyle for young people in Santa Ana. 29A -1 OCHSA Van Donation March 21, 2011 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. t Gerardo Mouet, Executive Director Parks, Rec. and Com. Svcs. Agency REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: VARIANCE NO. 2011 -01 TO ALLOW A REDUCTION IN LANDSCAPED SETBACKS FOR A NEW MEDICAL OFFICE BUILDING AT 1901 NORTH TUSTIN AVENUE — PARAGOLD LP, APPLICANT J� ,� 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 Receive and file the staff report approving Variance No. 2011 -01 as conditioned. PLANNING COMMISSION ACTION On February 28, 2011, the Planning Commission adopted a resolution approving Variance No. 2011- 01 as conditioned by a vote of 7:0 to allow an existing building to encroach into the required landscaped setbacks for a new medical office building at 1901 North Tustin Avenue located in the Community Commercial (Cl) zoning district (Exhibit A). The Planning Commission modified Condition No. 7 to allow the applicant the ability to submit an alternate roofing material to the Planning Division for approval. FISCAL IMPACT There is no fiscal impact associated with this action. ,14y 1. Trevino Executive Director Planning & Building Agency VF:rb vt\reports \VAs \VA11 -01 1901 Tustin.cc Exhibit: A. Planning Commission Staff Report 31A-1 'ki r =v , REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: FEBRUARY 28, 2011 TITLE: PUBLIC HEARING — VARIANCE NO. 2011 -01 TO ALLOW A REDUCTION IN LANDSCAPED SETBACKS FOR A NEW MEDICAL OFFICE BUILDING AT 1901 NORTH TUSTIN AVENUE Prepared by Vince Fregoso Executive Director PLANNING COMMISSION SECRETARY APPROVED • As Recommended • As Amended • Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Va A 1AA_ Planning Manager RECOMMENDED ACTION Adopt a resolution approving Variance No. 2011 -01 as conditioned. DISCUSSION Request of the Applicant Raymond Schofield of Miller Architects, representing Paragold LP, is requesting approval of a variance in order to allow an existing building to encroach into the required landscaped setbacks. Specifically, the applicant is requesting approval of a variance from Sections 41 -368 and 41 -369 of the Santa Ana Municipal Code (SAMC), which requires a 15 foot landscaped setback along any street frontage. Project Location and Site Description The subject property is located at 1901 North Tustin Avenue. The site is approximately 0.68 acres in size, rectangular in shape and contains a vacant, 6,462 square foot structure. The existing setback along Tustin Avenue varies from eight to 20 feet and from five to 11 feet along Lenita Lane. The property fronts the Tustin Avenue frontage road and is located on the southeast corner of the frontage road and Lenita Lane. The site is surrounded by a combination of commercial and multi- family residential uses to the north, commercial and vacant land to the south, multi- family residential uses to the east and commercial and office uses to the west (Exhibits 1 and 2). Project Description The proposed project consists of an extensive remodel and rehabilitation of the site and vacant office building into a new medical office facility. The building exterior will be modified to include the replacement of damaged stucco, new wood siding and brick veneer, a new window fagade, the Exhibit A MA-1 Variance No. 2011 -01 February 28, 2011 Page 2 reroofing of the entire structure, the addition of green screen trellises, a trellis system over the building entrance and the repainting of the entire building. Site improvements will consist of the closure of the westernmost driveway on Lenita Lane, the removal of existing landscaping and the planting of new landscaping, the repairing and repaving of the parking lot and new site lighting. Improvements to the interior of the building will also be made and will include new non - bearing walls to create new exam and office space for the medical facility, new restrooms, upgrades to make the building ADA accessible, new flooring and paint. Once completed, the project will convey a sense of quality that is appropriate for an office use and satisfies the design standards set forth in the Urban Design Element and the Citywide Design Guidelines (Exhibits 3, 4, 5 and 6). Access to the project will be provided from both Tustin Avenue and Lenita Lane. The parking requirement for medical office buildings is six spaces per 1,000 square feet of building (Sec. 41- 1346). A total of 40 parking spaces will be provided on -site which is in compliance with the code. Project Background The building was constructed in 1962 and was occupied by the Automobile Club of Southern California (AAA) until 1999. At the time of its construction the building complied with all development standards then in place. Subsequent to its construction Tustin Avenue was realigned, the property was split by the new road, and the original Tustin Avenue became Old Tustin Avenue. This property split reduced the building's front yard setback making it non - compliant with today's development standards. The building is in compliance with all other development standards. In 2004, the Bagel Me Corporation submitted plans, and received approval, for a variance and minor exception. The variance was to allow a reduction in setbacks for the building, while the minor exception granted a reduction in parking for a restaurant use. Bagel Me had intended to open a 5,100 square foot Bagel Me restaurant while subleasing the remaining 1,400 square feet to an office use. However, in late 2005, Bagel Me decided not to move forward with their project and withdrew their applications. The building has remained vacant since 1999. General Plan and Zonina Analysis The General Plan land use designation for the site is General Commercial (GC), which allows for commercial and office uses. General Commercial Districts are primarily located on commercial corridors and major arterial roadways in the City. They provide accessible commercial development along the City's arterials as well as provide support facilities and services, including office, restaurants and various other services. The project is consistent with this General Plan land use designation. The subject site is located in the Community Commercial (Cl) zoning district. The C1 zone is a general commercial zone that allows for office uses such as the proposed medical facility. The proposed use is also consistent with the zoning. However, due to noncompliance with the setback standards, the project is legal nonconforming with current development standards. 31A-4 Variance No. 2011 -01 February 28, 2011 Page 3 Proilect Analysis Variance requests are governed by Section 41 -638 of the SAMC. Variance requests may be granted when it can be shown that the following can be established: • That there exists a special circumstance related to the property, such as size, shape, topography, location or surroundings. • That the granting of the variance is necessary for the preservation and enjoyment of substantial property rights. • That the granting of the variance will not be detrimental to the public or surrounding property. • That the granting of the variance will not adversely affect the General Plan. If these findings can be made, then it is appropriate to grant the variance. Conversely, the inability to make these findings would result in a denial. Using this information, staff has prepared the following analysis, which forms the basis for the recommendation contained in this report. In the case of proposed projects that are located on sites or in buildings considered to be legally non- conforming according to Article VI of the Zoning Ordinance, the project analysis begins with an assessment of the degree to which the proposed project triggers the need to bring such non- conforming aspects of the site into conformance with current standards. Regarding this project, Section 41 -683 of the Santa Ana Municipal Code (SAMC) states that if a nonconforming building is vacant, unused or unoccupied for 12 consecutive months, any subsequent use must conform to current development standards, including setbacks. As this particular building has been vacant for over 10 years, the medical office would not be able to occupy the building until the entire site complies with current code requirements, or a variance is approved for those items which do not meet the current standards. In this case the C1 zone requires a front yard setback of not less than 15 feet (Sec. 41 -368). When this front yard area abuts a street, as it does in this case, the area is also required to have 15 feet of landscaping (Sec. 41 -372). The building has an existing front yard setback of eight feet at the narrowest point along Tustin Avenue and five feet at the narrowest corner along Lenita Lane. The applicant is requesting to allow the existing setback to remain at its current dimension, which would require the approval of a variance from the code discussed above. In analyzing the variance request staff must be able to show that findings can be made that support the criteria listed above. 31A-5 Variance No. 2011 -01 February 28, 2011 Page 4 • The project site has a special circumstance related to its size, shape and location. The property is located on a road whose realignment cut into the original front yard setback thereby causing it to be non - compliant. The realignment also caused the property to be irregular in its size and shape further constraining the property's ability to provide the required setback. • The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. Meeting the setback standard would require the demolition of approximately 1,500 square feet of building area; a reduction of 23% of usable area. This reduction would significantly reduce the feasibility of the proposed use of the building, which impacts the property rights of the owners. • The granting of the variance will not be detrimental to the public or surrounding properties as the building and site is proposed to be rehabilitated to comply with all applicable development standards except for the front and side yard setback requirements. • Finally, the project will not adversely affect the general plan as the proposed medical use is a permitted use in the General Commercial land use designation. To minimize the effects of the reduced setback, the interior and exterior of the site will be upgraded. Further, the existing parking lot will be reconfigured to close the westernmost driveway on Lenita Lane, which will improve on -site circulation and provide additional landscaping. This improvement will make the parking lot comply with both the current setback standard as well as the landscaping standard. The applicant will be removing dead landscaping and will install new landscaping materials within the front and side yard setback areas as well as within all parking lot landscape planters. It is recommended that the required trees be upgraded to a 36 -inch box size and shrubs to a 5- gallon size throughout the project to compensate for the reduction in required setbacks. Public Notification The project site is not located within a neighborhood association, but is on the border of the Meredith Parkwood Neighborhood Association. The contact of this Neighborhood Association was notified by mail 10 days prior to this public hearing. The project site itself was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to 85 property owners within 500 feet of the project site, as well as concerned citizens listed on the Permanent Notification List. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. lkl_I�Q� Variance No. 2011 -01 February 28, 2011 Page 5 CEQA Analvsis In accordance with the California Environmental Quality Act, the proposed project is exempt from further review pursuant to Section 15061(b)(3), which is a general rule exemption applying to projects that have no possibility of having a significant effect on the environment. Categorical Exemption Environmental Review No. 2010 -121 will be filed for this project. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Variance No. 2011 -01 as conditioned. Vince Frego , AIC Principal Plan VF Jm AreportsWastVA11 -01 1901 Tustin.022811.pc Attachments: Exhibit 1 — General Vicinity Map Exhibit 2 — Site Plan Exhibit 3 — Floor Plan Exhibit 4 — Colored Building Elevations Exhibit 5 — Colored Building Elevations Exhibit 6 — Landscape Plan 31A-7 1'J I R4 Rl Rl 1 Al II 11 Rl 60-A 1 -7200 < R4 ,1 I, Z RE R4 4 R4 R1 I.mr.lo R4 R4 R1 CS Cs Rl P R4 R4 R1 -r70D - y I w tAFRI- Rl g 60 F" CS O -'10p I g RZ- R4 Al C5. PRD E eDRl�mo Al C 8 walr I IJ W-pt• 1 Al +r Cl ggg ay R1 Al 60 RIJTJp R1 I N3 R3 JR R1 � 1 Al R R - 6"17106 -- SD-52 1 City or Tustin D —w.. Rl C5 y. e Al Al x Rl Cl R3 jAl R RI -A R4 R1 + 00 � Iw,�._vr_ ._ g Al R1.7200 I e R4 R1 � 1 C1 Rta160 —,.r Al RV PIIWLI„1 S� Rl-B RI -B — I Al Cl CS C2 P CS C5 CS - -- � CS qi C5 �I CS 2 Cl R4 I C1 I C5 i R1 I 1 R1 -6 R1 -B Rl 1 R4 ; �4 -PR[ R4 -PRD R1 R, jsi —r�l I D 1 > Rl R4 ±r = -1 Rl R1 Rl �- -1- r = - -r III RD I D al rl ri i 11 R, ,1. —i�� —� P I it �h Rl R1 Rl l Al GENERAL AGRICULTURALt CR COMMERCIAL RESIDENTIAL Rt SINGLE FAMILY RESIDENTIAL -6 PARIONG MODIFICATION GC GOVERNMENT CENTER R2 TWO FAMILY RESIDENCE C -SM COMMERCIAL SOUTH MAIN M1 LIGHT INDUSTRIAL R3 MULTIPLE DENSITY MULTIPLE C, COMMUNITY COMMERCIAL M2 HEAVY INDUSTRIAL FAMILY RESIDENCE CI-MD COMM. COMMERCIALMIUSEUM DISTRICT MO MILITARY OPERATIONS R4 SUBURBAN APARTMENTS C2 GENERAL COMMERCIAL 0 OPEN SPACE RE RESIDENTIAL ESTATE C3 CENTRAL BUSINESS P PROFESSIONAL SO SPECIFIC DEVELOPMENT C3 -A CENTRAL BUSINESS -ARDST VILLAGE PCD PLANNED COMMUNITY DEVELOPMENT SP SPECIFIC PLAN CA PLANNED SHOPPING CENTER PRD PLANNED RESIDENTIAL DEVELOPMENT C5 ARTERIAL COMMERCIAL VA 2011 -1 SANTA ANA MEDICAL OFFICES 1901 NORTH TUSTIN AVENUE - - 500 FEET 1" =1000 FEET P L A N N I N G A N D B -IL D I N G A G E N C Y EXHIBIT 1 lki VA 2011 -1 A SANTA ANA MEDICAL OFFICES 1901 NORTH TUSTIN AVENUE P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT 2 n 3 3 � a CONDOQ z n y LAPARTMENTS mm O 2 O N N O D z 0 r tA LENITA LANE z PROJECT SITE m APARTMENTS o m 2 m COMMERCIAL (n s m 7/ m VACANT r VA:NT7 VACANT VA 2011 -1 A SANTA ANA MEDICAL OFFICES 1901 NORTH TUSTIN AVENUE P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT 2 V 3 11 1 W ip,[�@ v mill, 4 c i C r t � LYCtrLYS{08:3NOLId � 9� � in Ywv>Iaiaa or+wY ea 17v1NO� c LLYLY V�'OMGV O£ 2 0 +I Y3NVIALT/1WSDH 60N'M n1 WL 'd'l01098Vd m o Z D o Uj LYtac- YYC:Nw .. E a— CL E N sWIRYINUpmljlvWVIW6 • Ls O N a > ifslily NusnL'N LWI C Ix C Q 1VO103W VNV V1NVS m a d'l 010O iVd o g m ai p S 5 �. lipa �� + �L� Wee tree° SF L� z I�b it ;i� � 89 ;idi 1219 q EXHIBIT 3 Page 1 of 2 vlml f W n wtu+d wnullur Nw+n e I oL'. nNp M ®uuY I � PS Oi Wc�/LI ]eY rw I bo ui4�nrwe y+nfNEwoLtm� rm M rwL voaw wsM »ibu a+LrwiroNl ]w aM 31 A -10 a3111W §19 9VI N =E o ul N (n of Z Q € E a0g a o E 11 E i m ( c o LL Q o MH O C N d L .... .. p ,�ioi,a, 3N011d m nldrvvuoidi�alnai ao:t�YlNO� iO3 l NYS ALIIVJ dSOH' �1 / 3MI� ALiYlld9p11'M pl d'IOIOOaHd i 90LZ6 VINtl0111Y'�'VNY VLNV9 p 3fWSnY NI1SlIL Nt061 1b0103W VNV ` INVS �F ® ®4 d OIOJMdd 9VI N =E o ul N (n of Z Q € E a0g a o E 11 E i m ( c o LL Q o MH O C N d L oY.:a u»s n KYwa rwareY iv�w wl , I rm +um'� air I. ar Manin� as �Y 1 al's- IN -/,pvY anrilbTevnl Yiw rM rNa vmr wwWkuiou a�MOm�Ax'rw aro 31A-1 1 .... .. p i I , w .'',. s I o `. _� jg � gg !a❑ .z oY.:a u»s n KYwa rwareY iv�w wl , I rm +um'� air I. ar Manin� as �Y 1 al's- IN -/,pvY anrilbTevnl Yiw rM rNa vmr wwWkuiou a�MOm�Ax'rw aro 31A-1 1 �u I 1 i '➢ ! i, �fil I tT, "AIM A a� 0 1 i '➢ ! i, �fil I tT, �i ;! 'ifs ;k.n•9%✓� �I d 0 4 x e f 0 r u Z O Q LLl W9, EXHIBIT 5 31 A-13 r ■ to (,L D O Jp 0) Q �z ° �o T I Cl) JQ 0Ua �w� ��Q Qw CL w QZ W ZQ Qz F- QS F- zz Q� m� T Z O Q w J W Z O W J i aG ff 0 W w J Z g a s g g Poa I IS EV10A S 4 C ! c x N IW ke k 3 1 C J Z W �ti o I g � a .31w ,V W 0- O Q LO i O 0 N ol Z Q a ZC J s g g Poa I 'F, z< e4 s� _..._... IS EV10A S 4 C ! c x N IW ke k Ul nl S C J Z W �ti o I g � a ,V W 0- O Q LO i O 0 N Z Q a ZC J >° �i Q aa�' i N W W On < H Q w �T Z O Z <M oz 'F, z< e4 s� _..._... IS EV10A S 4 C c x N d ke k Ul nl S W i yI I k } 4 C c x N X ke k ao 02 00 �$ w0m i 4 $� r d m p u ke k ao 02 00 �$ CL o i OH - 02/28/11 RESOLUTION NO. 2011 -01 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING VARIANCE NO. 2011 -01 AS CONDITIONED TO ALLOW A REDUCTION IN LANDSCAPED SETBACKS FOR THE PROPERTY LOCATED AT 1901 NORTH TUSTIN AVENUE BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Variance No. 2011 -01 to allow a reduction in landscaped setbacks for a new medical office building at 1901 North Tustin Avenue. B. Variance No. 2011 -01 came before the Planning Commission of the City of Santa Ana for a duly noticed public hearing on February 28, 2011. C. Variance No. 2011 -01 has been filed with the City of Santa Ana seeking to reduce the required landscaped setbacks along the street frontage in the C1 district. Sections 41 -368 and 41 -369 of the Santa Ana Municipal Code require a fifteen (15) foot setback for a front yard and a side yard adjacent to a street for buildings on corner lots in the C1 district. In addition, Section 41 -372 of the Santa Ana Municipal Code requires a landscaped area not less than fifteen (15) feet along any property line abutting a street, except for paved driveways, in the C1 district. D. Santa Ana Municipal Code Section 41 -638 authorizes the Planning Commission to grant a variance upon making certain findings. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of provisions of this Chapter. The project site has a special circumstance related to its size, shape and location. The building was constructed in the 1960s and was previously used by the Automobile Club of Southern California (AAA). Subsequent to its construction 31 A -15 Tustin Avenue was realigned, the property was split by the new road, and the original Tustin Avenue became Old Tustin Avenue. This property split reduced the building's front yard setback making it non - compliant with today's development standards. The realignment also caused the property to be irregular in its size and shape further constraining the property's ability to provide the required setback. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. Meeting the setback standard would require the demolition of approximately 1,500 square feet of building area; a reduction of 23% of usable area. This reduction would significantly reduce the feasibility of the proposed use of the building, which impacts the property rights of the owners. The granting of the variance is necessary to preserve the property owner's rights and the variance will allow the owner to rehabilitate and improve the site for a medical office use that is consistent with the Community Commercial (Cl) zoning district. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The granting of the variance will not be materially detrimental to the public welfare or injurious to surrounding property as significant interior and exterior upgrades will be made to a vacant building that will bring the site into compliance with all applicable codes. Improvements such as a new building fagade, a new parking lot, new landscaping and new roofing will enhance this property as well as the surrounding properties. Further, the proposed medical office use will not generate operational impacts to surrounding properties. Finally, the building will comply with the provision of the California Building Standards Code. 4. That the granting of a variance will not adversely affect the General Plan of the City. The granting of the variance will not adversely affect the General Plan of the City since the proposed medical office use was designed in conformance with City Zoning, Development and General Plan requirements. iki V.1115 E. In accordance with recommended action 15061(b)(3), which is have no possibility o Categorical Exemption this project. the California Environmental Quality Act, the s exempt from further review pursuant to Section a general rule exemption applying to projects that having a significant effect on the environment. Environmental Review No. 2010 -121 will be filed for Section 2. The Planning Commission, after conducting the public hearing, hereby approves Variance No. 2011 -01, as conditioned in Exhibit "A" attached hereto and incorporated herein, to allow a reduction in the required landscaped setbacks for the property located at 1901 North Tustin Avenue. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated February 28, 2011, and exhibits attached thereto, and the public testimony, all of which are incorporated herein by this reference. ADOPTED this 28th day of February, 2011 by the following vote: AYES: Commissioners: Acosta, Alderete, Gartner, Mill, Nalle, Turner, Yrarrazaval (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) APPROVED AS TO FORM: Joseph Straka, City Attorney By: Ryan O. Hodge Assistant City Attorney Eric Alderete Chairman 31 A -17 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Martha Ramirez, Planning Commission Secretary, do hereby attest to and certify the attached Resolution No. 2011 -01 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on February 28, 2011. Date: Planning Commission Secretary City of Santa Ana ikii_[_d_E:� Conditions for Approval for Variance No 2011 -01 Should the Planning Commission approve Variance No. 2011 -01, the approval is subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the variance. Failure to comply with each and every condition may result in the revocation of the variance. A. Planning Division 1. All proposed improvements must conform to the Site Plan Review approval of DP No. 2010 -39 and the staff report exhibits. 2. Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. Landscaping, once installed, shall be maintained per the approved landscape plan. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy and per the approved plan. 4. Prior to issuance of a certificate of occupancy, the parking lot needs to be repaired and repaved per city standards. 5. The required trees shall be upgraded to 36 -inch boxed size and shrubs shall be upgraded to 5- gallon size throughout the project. 6. Vine pockets are required to be added along the south property line abutting Armstrong Garden Center. 7. The roofing materials for the building shall be made of lightweight concrete tiles or other suitable material as approved by staff. The exact material shall be submitted to the Planning Division for approval. (Modified by Planning Commission on February 28, 2011) Exhibit A B. Police Department 1. The existing building and parking lot must conform with the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing projects lighting, door /window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: RESOLUTION ADOPTING CITY OF SANTA ANA BIKEWAYS STRATEGIC PLAN l_ 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 Adopt a resolution approving the City of Santa Ana Bikeways Strategic Plan. 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 for projects, City Council authorized staff on March 7, 2011 to submit grant applications for three bike lane 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. The applications were submitted on March 18, 2011. One of the evaluation criteria for the grant application requires the City to have an adopted Bicycle Transportation Plan (BTP) that is consistent with the California Streets and Highways Code. The City's Bikeway Master Plan, which is a part of the Circulation Element of the General Plan, and which is scheduled to be revised as part of separate Council action on March 21, 2011, contains only some of the criteria required by the Streets and Highways Code. However, the City has the option of using the countywide Orange County Transportation Authority (OCTA) Commuter Bikeway Strategic Plan (CBSP). The CBSP meets all of the legislated requirements; however, some minor modifications will be needed to be consistent with the City's Bikeway Master Plan. These modifications (listed in detail in Exhibit A) and the CBSP constitute the City of Santa Ana Bikeways Strategic Plan. OCTA has reviewed our plan and concurs with the City's modifications. Staff is recommending adoption of the City of Santa Ana Bikeways Strategic Plan. 55A -1 Resolution Adopting City of Santa Ana Bikeways Strategic Plan March 21, 2011 Page 2 of 2 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed adoption of the CBSP has been determined to be adequately evaluated in the previously prepared Environmental Impact Report 97 -02 and Environmental Review No. 2011 -11. FISCAL IMPACT There is no fiscal impact associated with the adoption of the City of Santa Ana Bikeways Strategic Plan. I ^, Raul 6odinez II Executive Directo Public Works Agency RG/ZK Exhibit 1: Resolution Exhibit A: Modifications to City's Bikeway Master Plan Exhibit 2: 2009 OCTA Commuter Bikeways Strategic Plan 55A -2 Iss03/11 /11 RESOLUTION NO. 2011 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADOPTING THE BIKEWAYS STRATEGIC PLAN PURSUANT TO 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. In order to be eligible for Bicycle Transportation Account 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). B. The Orange County Transportation Authority (OCTA) adopted the OCTA Commuter Bikeways Strategic Plan (CBSP) on May 22, 2009, on file with the Clerk of the Council. C. The CBSP meets the requirements of the California Bicycle Transportation Act and, with minor modifications, is consistent with the Santa Ana Bikeway Master Plan. D. With the approval of minor modifications, the CBSP may be adopted as the City of Santa Ana's Bikeway Master Plan, in conformance with the BTA. Section 2. The City Council of the City of Santa Ana adopts the Orange County Transportation Authority Commuter Bikeway Strategic Plan, as modified by the City of Santa Ana addendum, attached hereto as Exhibit A, as the City of Santa Ana Bikeways Strategic Plan. Section 3. The City Council of the City of Santa Ana authorizes the Executive Director of the Parks, Recreations and Community Services Agency and /or the Executive Director of the Public Works Agency to submit the approved Santa Ana Bikeway Strategic Plan to the State of California, Department of Transportation, for project funding under the Bicycle Transportation Account. Section 4. The City Council of the City of Santa Ana authorizes the City Manager and /or the Executive Director of the Parks, Recreations and Community Services Agency and /or 55A -3 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 , 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, Interim City Attorney in Laura S. Sheedy Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF PUBLICATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 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 55A -4 CITY OF SANTA ANA BIKEWAYS STRATEGIC PLAN Exhibit A MARCH 219 2011 55A -5 CITY OF SANTA ANA BIKEWAYS STRATEGIC PLAN Table of Contents Bicycle Transportation Plan Check List .......................... ............................... 2 Addendum to OCTA Commuter Bikeways Strategic Plan .... ............................... 3 Exhibit A: City of Santa Ana Proposed and Existing Bicycle Routes Map .................. 5 Appendix : OCTA Commuter Bikeway Strategic Plan, May 2009 4w CA V U O C� O Q a� ^V V rm, 55A -7 NI N +-� k� a ac rTl p"' -c a ter- a~ o Q d Q d Q d Q Q Q Q Q¢ in N n o i P M c oA -0 ca °J y N O O O C's N u o ca y N C 6 N v c � ca N ° Y o a ca .° � a N O U ca � N N • —_ Q- v ca a U �. U Y N CZS 3 N ca V a a ca 4c) N ¢ ° ca °' u a c o ° s c�a -c to ` a " U-0 -° � c ca _ a v `a ❑ a' N m aUi °' bn ca bb i c c 0 8� ° a� a N ° o a :° o c `o > N c bD r c a a�i � >, '- cd ° N M ca 3 ; 0 0 ai v o ca n 3 a as ca n = N ° Ca '� S N Z Q+ W FBI o .•o' -a �_ a ° U c,,, w .c lu 0 in. to M ° In. ° =° c o o CZ o a > -° t_ cn ca a N to cn c�3 by ca M w c ca .O t=' N ca N •.G 4- is cz Cd 4r > N N 0 k Cn C' v, C C C U b4 k O U N O .Y C N N •U ca C O N U C 6. � O 4 m 40 -i 40 -, N 0 'a Y tU. i' Cl N N 'a Y CZ o a o U ^ N 7. E N "O 6 � �' � ^a 'NO YO N Ca N N .b CII C1 55A -7 NI ADDENDUM TO OCTA COMMUTER BIKEWAYS STRATEGIC PLAN Introduction In order to be eligible for Bicycle Transportation Account funding, the City of Santa Ana is required to have an adopted bicycle transportation plan that meets with the criteria of the California Bicycle Transportation Act (Sections 890 -894.2 of the California Streets and Highways Code). There is an option for the City to either prepare its own plan or to adopt a countywide plan. A countywide plan does exist in the OCTA Commuter Bikeways Strategic Plan (CBSP) adopted by the Orange County Transportation Authority (OCTA) Board of Directors on May of 2009. The 2009 CBSP, an update to the plan previously adopted by OCTA in 2001, represents the culmination of a regionally supported effort that took a little over a year to complete. The result is a comprehensive plan that was coordinated with city and county bike plans, general plans, land use maps and existing and proposed bicycle systems. Public input was also sought through surveys, public meetings, and by posting the draft document on the OCTA website. The information submitted by the City of Santa Ana to OCTA for inclusion in the countywide plan was intended to replicate the Bikeway Master Plan adopted by City Council in 1998. However, after several iterations, the final CBSP document was found to include some minor discrepancies. On November 2, 2009 the City adopted the CBSP as its bicycle plan. However, on March 21, 2011 the City of Santa Ana adopted minor amendments to the City's Bikeway Master Plan. Due to the March 21, 2011 Bikeway Master Plan amendments, the City is now required to re -adopt the CBSP as its bicycle plan in accordance with the California Streets and Highways Code. This addendum is being prepared to identify the areas where it differs from the Council - approved plan. The CBSP, this addendum, its maps and exhibits will together embody the City of Santa Ana Bikeways Strategic Plan. Addendum The city of Santa Ana accepts the findings and proposed plans identified in the 2009 OCTA Commuter Bikeways Strategic Plan with the following exceptions: 1. Remove Class II bikeway on Flood Control Channel (Segerstrom Avenue to its south edge) to Map 1. 1, Map 1.2 and Exhibit: Orange County Bikeway Map / Section 3 and Section 4 in Appendix 4. 2. Add Class I1 bikeway on Memory Lane from Santa Ana River to Flower Street to Map 1.1 and Exhibit: Orange County Bikeway Map / Section 3 and Section 4 in Appendix 4. 3 e61 3. Add Class I1 bikeway on Flower Street from Memory Lane to Fisher Park to Map 1.1 and Exhibit: Orange County Bikeway Map / Section 3 and Section 4 in Appendix 4. 4. Add Class I bikeway on Bear Street from Segerstrom to MacArthur Blvd. to Map 1.1, Map 1.2 and Exhibit: Orange County Bikeway Map / Section 3 and Section 4 in Appendix 4. 5. Identify Raitt Street between McFadden Avenue and Edinger Avenue as a Proposed Class I Bikeway in Map 1.1 and Exhibit: Orange County Bikeway Map / Section 3 in Appendix 4. 6. Identify the Water Channel E/O Raitt Street between Occidental Street and Alton as a Proposed Class I bikeway in Map 1.1 and Exhibit: Orange County Bikeway Map / Section 3 in Appendix 4. 7. Add the Alton /Maple Union Pacific Class I bikeway to Map 1.1, Map 1.2, Exhibit Orange County Bikeway Map / Section 3 and Section 4 in Appendix 4. 8. Add a Proposed Class I1 bikeway on Memory Ln between Bristol Street and Santa Ana River to Exhibit: Orange County Bikeway Map / Section 4. 9. Identify Bristol Street as a Proposed Class 11 bikeway in Map 1.1. 10. Identify Grand Avenue as a proposed Class lI bikeway in Mapl .1. 11. Past Expenditures for bicycle facilities include: • Flower Street Bike Trail Extension. The project consisted of the installation of a 10' wide bike trail, landscaping and supporting irrigation along a'' /z mile length of a flood channel which runs parallel along Flower Street. The project total cost was $1,112,000. • Santiago Creek Underpass. The project consisted of the installation of a bike trail underpass to the 22 -fwy and Main Street. The project total cost was $500,000. • Carl Thornton Park Re- pavement. The project rehabilitated the bike trail going through Carl Thornton Park. Project cost was about $100,000. 12. The City has no funding mechanism for improving or implementation new bicycle facilities. The City relies on obtaining grant funding and providing matching fund to leverage the limited available City funds. Overall, the City has a need for new bike facilities in the corresponding financial need. 13. The following are "typographical" errors should be corrected on the specified pages • Appendix Pagel 70: "Bristol" St./ La Veta Ave. • Appendix Page 171: 17t' St Garden Grove City Limit "East" City Limit "(Buena St.)" (Deodar St.) Sunflower Ave. Costa Mesa City Limit Costa Mesa City Limit "(Bear St.)" "(E Park Center)" Page 169: Metro link/Amtrak Santa Ana Station Bicycle racks (18) /Lockers "(15)" 4 e-1 APPENDIX OCTA Commuter Bikeways Strategic Plan May 2009 Prepared for: Orange County Transportation Authority Prepared by: Alta Transportation Consulting 55A -10 oil ir°_ `'.' a`R° R d a x sg- qq"yj1wp71jHwq 3 -.0 a mpi: IQ °•{ d Sig F i { @ € 1 2 3 F _ "e._ _' a - '_ 'al X 4 [[ £ 5 :d ",...p, � fu.,, ., .., ,a_ ,a .asssaes m3a Sfs.nn ..n xx3.x s. aa.... v. a�sa i..d �: -• .. _ _ r s _ ______ES zt� f�f �£� ==i��tt FS�4 ££P_a lt2l� i_z<e _rr r ., e... ___ .. - Ixl sf. sP� +4 s IVY 1447 7XIMM"IMITTY4 AST Ta a . P _ s . `sd s v u r ' - gt s �, n a of E { f f t _ i f g,. t[ `E`x _ a, .3d a a az s..,:. � "a x tg 3,'P'' S . + §' — ' . r HOW, _� " � £ i t 057977j," y - Y Q ""N 7eFs I �Fe {,i ii i "P ie.i. iii i_. ., ,'dei s I 1 I AIR L I Fh ; _ .. `6SIr � -w -., � � ,� ♦� o I t a7 ins ._, e � � S i Ii 1 ,I u. r tl V I a ��• 1 i e � ;� t5 ... I '. t � i_ i �• _ �� �1 � �' s P 11346'8 � -V 1 � t I OR, i 3i ♦ y i 1 1 f ♦ _ ; Ii s }� tF P# i� ii' s7 i �r e s� 4 7 t Lam!, � �' �e E� e ♦ � �. »I. i ; I man ii I I� 5n.a�� 2E�8s I9 1 i3 f E ��. M Fi 33 e „ AL \ _..- iseter.e�s:tY 0 m I ❑ O=ff ° Ial WAS 0w; Im 1 e c m _ v U 7 x U < s y 1 1 1 1 e 55A -11 55A -12 Exhibit 2 - 2009 OCTA Commuter Bikeway Strategic Plan on file. 55A -13 55A -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED ❑ As Recommended RESOLUTION AND AUTHORIZATION ❑ As Amended TO SUBMIT COMMUNITY -BASED ❑ Ordinance on V' Reading ❑ Ordinance on 2nd Reading TRANSPORTATION PLANNING ❑ Implementing Resolution PROJECT APPLICATION ❑ Set Public Hearing For CITY MANAGER RECOMMENDED ACTION CONTINUED TO FILE NUMBER Adopt a resolution approving the application for grant funds for the Community -Based Transportation Planning Grant Program through the California Department of Transportation, Division of Transportation Planning. DISCUSSION The State of California Department of Transportation (Caltrans) issued a call for Community - Based Transportation Planning (CBTP) project applications for Fiscal year 2011 -2012. CBTP is a State - funded program which provides funds for projects that integrate transportation, land -use planning, and community values to support livable communities. This program is administered by the Office of Community Planning in Caltrans Division of Transportation Planning. In response to this call, staff is requesting authorization to prepare and submit a grant application to support the City's transportation and mobility goals. The grant application will focus on preparing a bikeway and pedestrian plan. The resolution authorizing the request for funding is required as part of the application. The application deadline is March 30, 2011. ENVIRONMENTAL IMPACT Per Section 15061(b)(3) of the California Environmental Quality Act, this action is exempt from further review as there is no potential for any environmental impact. 55B -1 Authorization to Submit CBTP Application March 21, 2011 Page 2 of 2 FISCAL IMPACT The Community -Based Transportation Planning Program will provide 90 percent of the funding for any project that is approved for funding, with a required local match of 10 percent. The estimate grant funding request is $300,000; therefore, the City's contribution will need to provide approximately $33,333. The City's match for those projects receiving BTA grant funds will be budgeted in a future Capital Improvement Program. r- Raul Godinez II Executive Direct Public Works Agency RGrrH Exhibit 1: Resolution APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Iss03/09/11 RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE APPLICATION FOR PROJECT FUNDING UNDER THE COMMUNITY BASED TRANSPORTATION PLANNING 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 State of California Department of Transportation (Caltrans) has issued a call for projects through the Community Based Transportation Planning Program (CBTP), providing funding for projects which integrate transportation, land use planning and community values to support livable communities; and B. CBTP funding is available on a competitive basis for projects which support livable community concepts with a mobility objective to promote community identity and quality of life; and C. CBTP funding would allow the City of Santa Ana to prepare a bicycle and pedestrian plan; and D. The City will comply with the assurances set forth in the application. Section 2. The City Council of the City of Santa Ana authorizes the submission of an application for Community Based Transportation Planning funding in the amount of $300,000 for implementation of a bicycle and pedestrian plan. Section 3. The City Council appoints the City Manager, or the Executive Director of the Public Works Agency or his designee, as agent for the City of Santa Ana to conduct all negotiations, execute and submit all documents, including but not limited to applications, agreements, amendments, payment requests and so on, which may be necessary for the completion of the project. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. l : J ADOPTED this day of 12011. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, Interim City Attorney Bv: Laura Sheedy Assistant City Attorney AYES: NOES: Councilmembers: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of Council City of Santa Ana 55B -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: RESOLUTION — OPPOSITION TO ELIMINATING REDEVELOPMENT AGENCIES CITY MANAGER 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 RECOMMENDED ACTION Adopt a resolution of the City of Santa opposing the Governor's proposal to eliminate Community Redevelopment Agencies. DISCUSSION Governor Brown's fiscal year 2011 -2012 state budget proposal includes the elimination of redevelopment agencies. This proposal would have major impacts for the City of Santa Ana. Redevelopment has had decades of positive results in improving communities across the state and has contributed to an array of projects throughout Santa Ana. Some of these accomplishments include the Main Place Mall, Santa Ana Auto Mall and the Grand Central Arts Center. The negative impacts on our economy, including job- creation and the development of affordable housing, would be so devastating that the League of California Cities is assembling a team of lawyers to challenge the State if in fact they vote to abolish the redevelopment agencies. The League of California Cities legal team contends that the Governor's proposed elimination of Redevelopment Agencies is unconstitutional based on the passage of Proposition 22 late last year. Cities across the State are contributing toward this expense and the Santa Ana Redevelopment Agency's portion of the fee is $7,500. FISCAL IMPACT The fee will be paid by the Santa Ana Redevelopment Agency. `1(" -q Nancy T. 0 wards Interim Ex6cutive Director Community Development Agency NTE/TE /mlr Exhibit: 1. Resolution 55C -1 55C -2 3/17/11 LES RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA OPPOSING GOVERNOR BROWN'S PROPOSAL TO ELIMINATE COMMUNITY REDEVELOPMENT AGENCIES AND AUTHORIZING THE CONTRIBUTION OF FUNDING FOR LEGAL OPPOSITION TO SAID PROPOSAL 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 conclusively finds, determines and declares as follows: A. Governor Brown's fiscal year 2011 -2012 state budget proposal ( "Proposal ") includes, among other items, the elimination of redevelopment agencies. B. Redevelopment has had decades of proven results in improving communities and has contributed to an array of positive projects and programs throughout Santa Ana. C. The negative impacts of eliminating redevelopment agencies would include compounding blighting conditions, loss of local businesses and jobs, further declining economy and loss of affordable housing projects and programs. D. The California League of Cities is assembling a team of lawyers prepared to challenge the State of California should the Governor's proposal be passed. E. The Council is urging the protection of redevelopment funds and the programs they support. Section 2. The City of Santa Ana is strongly opposed to the elimination of redevelopment agencies and is prepared to assist the California League of Cities with funding to legally challenge the State. Section 3. The City Manager, or his designee, is hereby authorized to take all necessary actions and to sign all documents and instruments necessary to oppose the elimination of redevelopment agencies and to assist the California League of Cities with funding to legally challenge the State action. 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. 55C -3 ADOPTED this day of March, 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: City Attorney By: Lisa E. Storck Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT Councilmembers: Councilmembers: Councilmembers: Councilmembers: 3/17/11 LES 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 .2011. Date: Clerk of Council City of Santa Ana 55C -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED PUBLIC HEARING - ORDINANCE AMENDING ❑ As Recommended THE SANTA ANA MUNICIPAL CODE ❑ As Amended REGULATING TELECOMMUNICATIONS ❑ Ordinance on 151 Reading ❑ Ordinance on 2 "d Reading FACILITIES IN THE PUBLIC RIGHT -OF -WAY ❑ Implementing Resolution ❑ Set Public Hearing For " MANAGER RECOMMENDED ACTION CONTINUED TO FILE NUMBER Adopt an ordinance adding Article X to Chapter 33 of the Santa Ana Municipal Code regulating telecommunication facilities in the public right -of -way (OA- 2010 -01). 2. Approve the Negative Declaration for the Telecommunications Facilities in the Public Right - of -Way Ordinance (ER- 2011 -1). 3. Adopt a resolution establishing fees for plan checking and permitting telecommunications facilities in the public right -of -way. DISCUSSION The Public Works Agency manages the public right -of -way and issues permits for construction of utilities. Recently staff has received applications from wireless telecommunications providers to install cell phone antennas and other related equipment in the street right -of -way. Although Chapter 41 of the City's municipal code regulates wireless installation on private property, the municipal code currently does not contain regulations specifically related to wireless facilities within the public right of way. Public Works staff and the City Attorney's Office have prepared an ordinance to regulate telecommunications facilities in the public right -of -way. Staff has also coordinated with and received input from residents and the telecommunication providers on the proposed set of regulations. The ordinance was presented and discussed with the Environmental and Transportation Advisory Committee at its February 10, 2011 meeting. The ordinance specifies noticing requirements, including notification of adjacent property owners and neighborhood associations and posting at the site. It also provides direction on siting preferences, maximum height of installations, mounting options, and aesthetic considerations. The ordinance also establishes requirements related to public safety and ongoing maintenance of the installed facility. 75A -1 Ordinance Amending the Santa Ana Municipal Code Regulating Telecommunications March 21, 2011 Page 2 The ordinance specifies the information to be submitted with an application for a facility in the public right -of -way, including a gap coverage analysis to establish the need for the facility in a particular area and an alternative site analysis to show why other less intrusive sites were not selected by the provider. The ordinance allows for review of the analyses by a qualified radio frequency consultant. The application will also include photo simulations and a statement that the installation will comply with all applicable radio frequency emission standards. The ordinance will provide the Public Works Agency with the ability to effectively regulate telecommunications facilities in the public right -of -way. A resolution has been prepared which establishes fees in connection with processing telecommunications facility permit applications. The application fee provides for cost recovery to compensate the City for staff time and costs related to review, site investigation, and public notice, as well as review of the gap analysis and alternative site analysis. The fee also includes a permit fee in connection for permit including staff time related to permit issuance and inspection during installation. ENVIRONMENTAL IMPACT Pursuant to the California Environmental Quality Act, Environmental Review No. ER- 2011 -01 has been completed and a Negative Declaration has been filed for this project. FISCAL IMPACT Fees collected as part of the telecommunications facility permit process will be deposited in the Residential Street Improvement Revenue Fund (accounting unit 05817002 - 53706) and the Transportation Planning and Project Management Revenue Fund (accounting units 08617002- 51704 and 08617002 - 56305). Rau Godinez II Executive Director Public Works Agency RG/TH Exhibit 1: Ordinance Exhibit 2: Negative Declaration Exhibit 3: Resolution APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez r -A Executive Director Finance & Management Services Agency 75A -2 lss2 /25/ I 1 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADOPTING GUIDELINES FOR TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT OF WAY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The guidelines set forth in this ordinance are necessary to preserve public health, safety, welfare, and aesthetic interests in the public right of way. None of these guidelines are, however, adopted solely for aesthetic interests. B. Given the increasing use of telecommunications facilities in society today, the City expects to receive applications for permits for such facilities in increasing number, some of which facilities are significantly larger than most similarly situated existing installations; and C. The City does not intend that this ordinance prohibits or has the effect of prohibiting telecommunications service; rather, the City seeks to limit development of telecommunications facilities in and around residential neighborhoods to the fullest extent allowed by law; and D. The City recognizes its responsibilities under the Federal Telecommunications Act of 1996 and State law, and believes that it is exercising its regulatory authority to the fullest extent under the current state of the law in ensuring that irreversible development activity does not occur that would harm the public health, safety or welfare. Section 2. The City Council has reviewed and considered the information contained in the initial study and the negative declaration prepared with respect to this Ordinance. The City Council has, as a result of its consideration and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act ( "CEQA ") and the State CEQA Guidelines, a Negative Declaration adequately addresses the expected environmental impacts of this Ordinance. On the basis of this review, the City Council finds that there is no evidence from which it can be fairly argued that the project will have a significant adverse effect on the environment. The City Council hereby certifies and approves the negative declaration and 75A -3 Iss2/25/11 directs that the Notice of Determination be prepared and filed with the County Clerk of the County of Orange in the manner required by law. Pursuant to Title XIV, California Code of Regulations ( "CCR ") § 735.5(c)(1), the City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any adverse effect on wildlife resources or the ecological habitat upon which wildlife resources depend. The proposed project exists in an urban environment characterized by paved concrete, roadways, surrounding buildings and human activity. Therefore, pursuant to Fish and Game Code § 711.2 and Title XIV, CCR § 735.5(a)(3), the payment of Fish and Game Department filing fees is not required in conjunction with this project. Section 3. Article X is added to Chapter 33 of the Santa Ana Municipal Code to read in full as follows: ARTICLE X TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT OF WAY SECTIONS 33 -230 Purpose and Intent 33 -231 Definitions 33 -232 Siting Preferences 33 -233 Prohibited On Roadway of Public Street 33 -234 Dangerous Condition or Obstruction 33 -235 Permit Required 33 -236 Application Required 33 -237 Fee 33 -238 Notice of Application Submittal 33 -239 Permit Issuance 33 -240 Appeal 33 -241 Site Selection Guidelines and Criteria 33 -242 Visual Impact Guidelines 33 -243 Public Safety Guidelines 33 -244 Maintenance Standards 33 -245 Compliance with Applicable Law and Regulations 33 -246 Nonexclusive Use of Public Right of Way 33 -247 Director's Guidelines 33 -248 Submittals 33 -249 Indemnity and Insurance 33 -250 Coordination with other Projects 33 -251 Installation in Streets Subject to Future Improvement 33 -252 Urban Forest 33 -253 Permit Non - Compliance; No Waivers 75A-4 ]ss2 /25/11 33 -254 Future Changes in the Law Sec. 33 -230. Purpose and Intent. The City Council finds and determines that it is in the interest of the City of Santa Ana to establish a process that balances the need for Santa Ana residents to access wireless communications, the general welfare of Santa Ana residents, and the requirements of state and federal law, to guide applicants for telecommunication facilities within or along the public right of way. Accordingly, this article is adopted: (1) To provide uniform standards for the community desired design, placement, permitting and monitoring of telecommunication facilities consistent with applicable state and federal requirements. (2) To manage the public right of way as to the time, place, and manner in which it is accessed. (a) To minimize the environmental and aesthetic impacts of installations in crowded public rights of way. (b) To strongly encourage telecommunications facilities to be installed only as ancillary uses at new and existing sites. (c) To require installation on arterial rather than local streets when feasible. (3) To preserve view corridors, to discourage visual blight and clutter and to encourage aesthetic placement of telecommunication facilities. (4) To accommodate public and City use of the public right of way, so as to permit maintenance of telecommunication facilities, and to minimize disruption to vehicular traffic and pedestrian flow; and on- street parking. (5) To minimize unnecessary disruption of the public right of way by coordinating installations so as to effectively manage use of the public right of way. (6) To ensure the structural integrity, reliability, performance, safety, quality, ease of maintenance, and aesthetic integrity of the public right of way. (7) To ensure that similarly situated public right of way users are treated in a competitively neutral and non - discriminatory manner while complying with applicable state and federal requirements. (8) To ensure compliance with all federal, state, county, and local laws. 75A -5 lss2/25/11 (9) To prevent hazardous conditions along the public right of way. (10) To manage the long -term use of the public right of way. Sec. 33 -231. Definitions. For the purpose of this Article, the following words or phrases are defined below: (a) "Agency" means the City's Public Works Agency. (b) "Antenna array" means one or more rods, panels, discs, or similar devices used for the transmission or reception of radio frequency signals, which may include omni - directional antennas (whip), directional antennas (panel), and parabolic antennas (dish), but excluding any support structure. (c) "Director" means the Executive Director of the Public Works Agency or designee. (d) "Parkway" means that area between the sidewalk and the curb of any street, and where there is sidewalk adjacent to the curb, that area between the sidewalk and the right of way line and where there is no sidewalk, that area between the curb or edge of the roadway and the right of way line adjacent thereto. (e) "Permit" means a permit issued pursuant to this Chapter allowing the placement of a telecommunication facility within a specifically designated portion of the public right of way. (f) "Person" means any individual, firm, company, partnership, corporation, entity, agency, or other organization. (g) "Primary use" means the main purpose for which a site is developed and occupied, including the activities that are conducted on the site a majority of the hours which activities occur, including, but not limited to, a street light or power pole. (h) "Public sidewalk" means any surface dedicated to the use of pedestrians by license, easement, operation of law or by grant to the City. (i) "Public right of way" or "right -of -way" means the area on, below, or above a city owned or controlled street or alley public right of way and the sidewalk and /or parkway adjacent thereto. (j) "Roadway" means that portion of a public street improved, designed or ordinarily used for vehicular traffic. 75A -6 lss2 /25/11 (k) "Shared use" means a site or facility where a wireless provider shares a telecommunications facility with an existing structure, such as a street light or utility pole or a similar replacement of an existing structure. (1) "Significant Gap" means a gap in the telecommunications signal, including geographic coverage, interference and capacity issues resulting in the inability of telecommunications users to reliably place, maintain or receive calls. (m) "Support structure" means a freestanding structure designed and constructed to solely support an antenna array and that may consist of a monopole, a self- supporting lattice tower, a guy -wire support tower, or other similar structure. (n) "Telecommunication Facility" means and includes any wire or line, antenna, pipeline, pipe, duct, conduit, converter, cabinet, pedestal, meter, tunnel, vault, equipment, drain, manhole, splice box, surface location marker, pole, structure, utility, or other appurtenance, property, or tangible thing used to provide telecommunications and /or video services to the public. (o) "Work" means all labor, materials, equipment, services, and all other things necessary for a person to install a telecommunication facility in the public right of way, including without limitation any changes requested by the City, in accordance with this Article and all applicable laws and regulations. Sec. 33 -232. Siting Preferences Whenever possible telecommunication facilities shall be located on feasible sites outside of and non - adjacent to property zoned or used for residential purposes. To the extent possible, telecommunications facilities shall be located outside the public right -of- way. If an alternative site analysis indicates the only feasible site is in the right -of -way within one hundred forty feet (140) of property zoned or used for residential purposes, placement may be approved on arterial streets. If facility must be sited on a local street to fill a significant gap, placement may only be allowed on an existing street light or utility pole, or a replacement pole located at the same site. For purposes of this section, feasible sites are sites that 1) are not encumbered by deed restrictions or other legal impediments that prohibit the installation of telecommunication facilities; 2) are owned or controlled by an entity that is willing to allow the use of the proposed site for a telecommunication facility installation; 3) include existing structures (such as street lights and utility poles) upon which telecommunication facilities can be mounted; 4) require no new permanent disruptions (i.e. access roads, retaining walls, etc.) that do not primarily serve the primary use; and 5) where the proposed telecommunication facility, including accessory cabinets, can be designed, treated or screened in an aesthetic manner that is in keeping with the surrounding area. 75A -7 lss2 /25/11 Sec. 33 -233. Prohibited on roadway of public street No person shall install, use or maintain any telecommunication facility in such a manner that it impedes travel on the right -of -way, nor shall such installation violate siting regulations imposed by the California Public Utilities Commission. Sec. 33 -234. Dangerous condition or obstruction No person shall install, use or maintain any telecommunication facility which in whole or in part rests upon, in or over any public sidewalk or parkway, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such telecommunication facility unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location. Sec. 33 -235. Permit Required. No person shall install or maintain any telecommunication facility which in whole or in part rests upon the public right of way without first obtaining a permit from the Director under this Chapter. Sec. 33 -236. Application Required. Before a permit is issued, a written application must be filed with the Agency on a form approved by the Director. The application shall contain the following: 1. The name, address and telephone number of both the applicant and the owner of the telecommunication facility; 2. The name, address and telephone number of the responsible person whom the City may contact at any time concerning the telecommunication facility; 3. The applicant shall show legal authority to occupy and use for the purpose mentioned in the application, the streets, alleys, sidewalks or other public places where the excavation, placement, location or installation of telecommunication facilities is proposed to be made; 4. A site plan to scale, elevation drawings, before installation photographs showing the exact location of the proposed telecommunication facility (including a description of the location in a format compatible with the City's geographic information system database), including other improvements in the project area, renderings and /or photo simulations of the installed telecommunication facility with appurtenances including power meter boxes and surrounding landscaping elements; 5. At the request of the Director, a photograph and model number of the telecommunication facility being proposed; lss2/25/11 6. A coverage map indicating the area which will be served by the proposed telecommunication facility and any significant gap which will be filled by such installation; 7. A construction plan and schedule, to include start and end dates and phasing, as required by the Agency, including additional telecommunication facility locations which the applicant plans to install within five years from the date of application submittal; 8. Engineering certification demonstrating compliance with all existing RF emission standards. The technical information submitted must include support/analysis to justify the proposed location and height of the telecommunication facility; 9. The applicant shall include a list of names and addresses of all property owners, as shown on the latest assessment roll of the county assessor, and tenants within three hundred feet (300') of the exterior boundaries of the proposed site or location. This list shall be in an approved mailing label format, 10.An alternative site analysis, including a map indicating the address and Assessor's parcel number of each alternative site within the coverage objective, a statement of what good faith efforts and measures were taken to secure each of these alternative sites, why each such site is not technologically, legally or economically feasible, how and why the proposed site is essential to meet service demands for the geographic service area and the citywide network. This information is necessary to determine whether there will be a significant gap in coverage if the project is not approved or whether alternatives exist for providing coverage; 11.A non - refundable application and processing fee, in an amount established by resolution of the City Council to defray the City's costs to process the application and to inspect the telecommunication facility. Sec. 33 -237. Fee (a) Processing Fees. The fee for any permit or application required by this article shall be set by the City Council by resolution from time to time. (b) Independent Consultant. As reasonably required, the Applicant may be required to provide an authorization waiver to permit the City to hire an independent qualified consultant to evaluate any technical aspect of the proposed telecommunication facility. Any authorization for this purpose shall include an agreement by the applicant to reimburse the City for all reasonable costs associated with the consultation. Any proprietary information disclosed to the City or the consultant is hereby deemed not to be a public record, shall remain confidential, and not be disclosed to any third party without the express consent of the applicant, except as hereafter required by operation of law or by court order. 75A -9 lss2/25/ 11 Sec. 33 -238. Notice of Application Submittal (a) Within five (5) business days of acceptance of a complete application, the Director shall give or cause notice to be given that the application has been submitted. The notice shall provide a brief description of the proposed telecommunication facility, a map indicating the proposed location, information describing the permit review process including the anticipated action date on the permit request. Notice shall be accomplished by: (i) mailing notices to the owners of property located in residential districts and within 300 feet of the exterior boundaries of the proposed installation site. (ii) mailing notices to any neighborhood association representing residential property located within 300 feet of the exterior boundaries of the proposed installation site. (iii) Posting a notice at the proposed installation site on the existing utility pole, street light or similar structure to be modified or replaced, or as close thereto as reasonably possible. (b) Written comments received by the Director shall be considered as part of the staff review. The comment review period shall be 30 days from the date notice is provided. (c) The applicant shall work cooperatively with the City to consider or otherwise respond to comments received by the Director. Sec. 33 -239. Permit Issuance. (a) A permit for a telecommunication facility shall be granted, denied or conditionally granted by the Director within a reasonable time after receiving a completed application (b) The Director shall issue a permit if the Director makes all of the following findings: (1) The proposed telecommunication facility is visually compatible with the surrounding neighborhoods; (2) The applicant has demonstrated that the installation will not substantially interfere with the use of the public right -of -way and existing subterranean infrastructure; (3) The proposed telecommunication facility complies with all applicable regulations of the Federal Communication Commission; (4) The applicant has demonstrated that the proposed site will close a significant gap in coverage and the proposed site is the least intrusive means of providing telecommunication services available to the applicant; 75A -10 lss2 /25/11 (6) The applicant has coordinated the final siting location of the telecommunication facility with the Director; (7) The applicant has posted a performance bond or other security in an amount rationally related to the cost of removal; and (8) All notification requirements for the proposed telecommunication facility have been met. (c) In granting or denying an application, the Director shall make a written finding which shall specify all facts relied upon in rendering his decision. A copy of the decision shall be filed with the City's Public Works Agency and mailed to the applicant and to any person who has submitted a comment on the proposed application pursuant to Section 33 -238 (b), above. Sec. 33 -240. Appeal Any interested person may appeal the decision of the Director pursuant to chapter 3 of this Code. Sec. 33 -241. Site Selection Guidelines and Criteria. (a) The Director may authorize support structures within the public right of way only with a finding that such support structure is required to fill a significant gap and is less intrusive than placement on a primary use in terms of visibility, access or aesthetics. (b) Traffic Obstruction. The placement of the telecommunication facility shall not permanently impede vehicular or pedestrian traffic flow; (c) No modification to above - ground or at -grade telecommunication facilities, including those related to size, color and shape of the housing, may be made by the applicant without first having obtained approval of the Director. (d) To the maximum extent feasible, all appurtenant equipment, including radio base station, electrical panel, and control panel assembly, shall be placed below ground. Where feasible, as new technology becomes available, the applicant shall place an existing or proposed above - ground telecommunication facility below ground. Sec. 33 -242. Visual Impact Guidelines. (a) Unobtrusive Design. Telecommunication Facilities shall be designed to be as visually unobtrusive as feasible. Colors and designs must be visually neutral, integrated and compatible with surrounding buildings and /or uses in the area. Facilities shall be sited to avoid or minimize obstruction of views from adjacent properties and otherwise preserve the aesthetic integrity of the public right of way. 75A -11 lss2 /25/11 (b) An antenna array shall be installed as a shared use on an existing or replacement pole and shall not extend over seven feet beyond the top of the pole. However no telecommunication facility located within 140 feet of a residential property shall exceed thirty -five (35) feet in height. Additionally, no telecommunication facility shall exceed sixty (60) feet in height from the ground level as measured from the nearest street curb. (c) Camouflaged Design and Screening. When feasible, Applicant shall use state of the art, well camouflaged designs and screening to minimize visual impact of the telecommunication facility. For example, the visual impact of a telecommunication facility may be mitigated by integrating it into existing functional facilities, by the planting of trees to screen the antenna from adjacent private properties. (d) Landscaping. New landscaping and irrigation designs shall be restored to like or better condition approved by the Director in accordance with the City's landscaping standards. 1. For telecommunication facilities installed in the public right of way in an area where no sidewalk exists, the permittee shall install landscaping immediately surrounding the installation and restore any landscaping disturbed by the installation. The installed and restored landscaping shall be consistent with the existing surrounding landscaping. 2. All new landscaping shall be served by an automatic irrigation system installed, or if existing, modified, to sustain landscaping. If an automatic irrigation system is not feasible, applicant shall submit a manual irrigation plan with its application, and guarantee to replace any vegetation that dies from lack of watering. (e) No Telecommunication Facility shall be illuminated unless specifically required by the FAA or other governmental agency for security or clearance purposes. (f) Signs and Advertising. No advertising signage or identifying logos shall be displayed on any telecommunication facility except for small identification, address, warnings, and other similar information plates. Such information plates shall be identified in the telecom application and shall be subject to approval by the Director. (g) If an applicant proposes to replace a pole in order to accommodate their telecommunication facility, the pole shall match the appearance of the original pole to the extent feasible and shall be approved by the Director. 75A -12 lss2 /25/11 (h) Historic Structures. The telecommunication facility should not be located immediately in front of, beside or behind historic resources recognized by the City pursuant to Chapter 30 of this Code. Sec. 33 -243. Public Safety Guidelines. (a) Arterial Highway Pedestrian Passage. In public rights of way that are designated in the Circulation Element of the City's General Plan as "arterial" streets or highways, and which have an existing sidewalk, the telecommunication facility should be located on the sidewalk or parkway such that there is a minimum six feet (6) unobstructed distance between the edge of the cabinet and any private property, in order to provide sufficient clearance for pedestrians and wheelchairs. If the paved sidewalk is less than six feet (6') wide, the applicant may propose to construct additional sidewalk to meet this requirement if possible; provided, however, that a sufficient length of sidewalk shall be constructed to leave no discontinuities in the new path of access. The telecommunication facility shall be installed in the public right of way with a minimum of eighteen (18) inches of unobstructed distance maintained between the edge of the cabinet and the edge of the curb face (b) Non - arterial Highway Pedestrian Passage. In public rights of way that are not designated in the Circulation Element of the City's General Plan as "arterial" streets or highways, and which have an existing sidewalk, the telecommunication facility shall be located on the sidewalk or parkway such that there is a minimum four feet (4') unobstructed distance between the edge of the cabinet and any private property line, in order to provide sufficient clearance for pedestrians and wheelchairs. If the paved sidewalk is less than four feet (4') wide, the applicant may propose to construct additional sidewalk to meet this requirement if possible; provided, however, that a sufficient length of sidewalk shall be constructed to leave no discontinuities in the new path of access. The telecommunication facility shall be installed in the public right of way with a minimum of eighteen (18) inches of unobstructed distance maintained between the edge of the cabinet and the edge of the curb face (c) Non -paved Sidewalks. In public rights of way with no existing sidewalk pavement, the telecommunication facility shall be located in the parkway such that there is a minimum four feet (4') unobstructed distance between the edge of the cabinet and any private property line, in order to provide sufficient clearance for pedestrians and wheelchairs by one of the following methods: 1. Where there is no curb face, the telecommunication facility shall be installed in the public right of way with a minimum of four (4) feet of unobstructed distance between the edge of the cabinet and the edge of the paved street; or 2. Where there is a curb face, the telecommunication facility shall be installed in the public right of way with a minimum of eighteen (18) inches of 75A -13 lss2 /25/11 unobstructed distance between the edge of the cabinet and the edge of the curb face. (d) Vehicular Line of Sight and Sight Distance. The telecommunication facility shall not be located in the "visibility triangle," defined as that portion of both public and private property located at any corner and bounded by the curb line or edge of roadway of the intersecting streets and a line joining the points on the curb or edge of the roadway of the intersection streets forty -five feet (45) from the point of intersection of the extended curb lines or edges of roadway. The telecommunication facility shall not be located adjacent to street intersections, driveways and alley intersections where they would reduce the sight distance for existing vehicular traffic to less than the distance required by City standards on file with the Public Works Agency. Sec. 33 -244. Maintenance Standards All telecommunication facilities subject to this Chapter shall comply with the following standards: (a) The applicant shall provide on -going maintenance of its telecommunications facilities, including ensuring the facilities are reasonably free of: 1. General dirt and grease 2. Chipped, faded, peeling and cracked paint 3. Rust and corrosion 4. Cracks, dents, blemishes and discoloration 5. Graffiti, bills, stickers, advertisements, etc; and 6. Broken and misshapen structural parts. (b) If an applicant discontinues use or abandons any telecommunication facility, the applicant shall immediately notify the Director, remove the equipment and restore the site to the condition it existed prior to installation of the telecommunication facility in a manner approved by the Director. (c) All above - ground telecommunications facilities shall be properly maintained in accordance with the following procedures: 1. All necessary repairs, including graffiti removal, shall be completed by the applicant within 48 hours after discovery or receipt of notification of the need for such repairs. 2. The applicant shall provide routine maintenance within 10 working days after receiving notice of the need for such maintenance. 3. Telecommunications facilities shall be replaced, in kind, within 45 days, if routine or emergency maintenance is not sufficient to return the equipment to the condition at the time of installation. 75A -14 lss2/25/ 11 Sec. 33 -245. Compliance with Applicable Law and Regulations This Article is not intended to be the exclusive means of regulating installation of Facilities in the public right of way and nothing herein is intended to waive any other applicable City requirements, including but not limited to building permit, storm water runoff, business license, excavation and undergrounding regulations. The applicant/permittee shall obtain all permits, licenses, and similar authorizations that are required by other governmental entities for the installation of its Facilities. The applicant/permittee must also be and remain in compliance with all applicable statutes, ordinances, rules, regulations, orders, and decisions issued by any federal, state or local governmental body or agency, including without limitation those issued by the California Public Utilities Commission and the Federal Communications Commission. Sec. 33 -246. Nonexclusive Use of public right of way All permits to construct or place Facilities in the public right of way shall be nonexclusive. The granting of a permit under this article by the City does not provide any permittee with an exclusive use of the public right of way. All telecommunication facilities permitted by this chapter shall, upon the demand of the Director, be relocated if required by the City to avoid potential conflicts with a proper governmental use of a street, alley, sidewalk or other public place. All expenses incurred in relocating shall be paid by the telecommunication facility owner. Sec. 33 -247. Director's Guidelines To the extent not preempted by applicable laws, the Director may prescribe additional guidelines covering the location, size and depth of excavations in public streets and sidewalks as the Director may deem necessary for the public safety and welfare. Where such guidelines are general in character and are designed to apply to all excavations of a certain type or nature, they shall be promulgated in writing showing the date of their enactment, and a copy thereof, duly certified to by the Director shall be kept on file where they may be made available for public inspection upon the demand of any person. All Work performed under this Article shall be subject to such guidelines. 33 -248. Submittals Prior to the issuance of any permit, each Applicant shall provide the Agency with evidence that it has obtained all applicable business licenses, state permits, and other licenses, as well as insurance in an amount and form specified by the Agency. Sec. 33 -249. Indemnity; insurance Prior to issuance of any permit under this article, each applicant shall: (a) Represent, stipulate, contract and agree that such applicant will indemnify 75A -15 lss2/25/11 and hold harmless and defend the City of Santa Ana, its officers and employees from and against any and all suits, actions, judgments, losses, costs, demands, claims, expenses (including attorney's fees), damages, and liabilities of every kind for any and all claims for damage to property, or injury to, or death of persons arising out of or resulting from the issuance of the permit or the placement of the telecommunication facility, except to the extent any damage or injury is due to the gross negligence or willful misconduct of the City, its officers or employees. (b) Obtain and file with the Clerk of the Council, and thereafter maintain during the term of any such permit, certificates evidencing comprehensive general liability insurance policy or policies, approved as to form by the city attorney, issued by an insurance company or companies authorized to do business in the State of California. The City of Santa Ana, its officers and employees shall be named as additional insureds on said policy or policies. The policy limits of said insurance policy or policies shall be not less than one million dollars ($1,000,000.00) combined single limit for both bodily injury and property damage, or equivalent. Said policy or policies shall also contain a provision that no termination, cancellation, or change of coverage of insured or additional insured shall be effective until after twenty (20) days' notice thereof has been given in writing to the Clerk of the Council. Sec. 33 -250. Coordination with other Projects To the maximum extent possible and as permitted by law, an Applicant shall design and schedule its Work so as to coordinate its Work with other persons installing, constructing, or maintaining Facilities in the public right of way and with the City. Sec. 33 -251. Installation in Streets Subject to Future Improvement Except in an Emergency or in the case of new service connections to a newly constructed or substantially remodeled building, a Telecommunication Facility shall not be installed in areas proposed for future street improvements pursuant to the City's adopted five year capital improvement plan. Sec. 33 -252. Protection of Urban Forest The permittee may be requested to retain, at its own cost, a certified arborist to advise the permittee's contractor doing underground work in the public right of way as to appropriate locations for underground vaults, conduits and other equipment and root pruning techniques, if needed, so as to ensure minimal impact to existing trees and other landscaping materials that are a part of the City's urban forest. The permittee's arborist shall coordinate their work with the City's Community Forester. 75A -16 lss2 /25/11 Sec. 33 -253. Permit Non - Compliance; No Waivers No permittee shall be excused from complying with any of the provisions of this article by any failure of the City on any one or more occasions to seek, or insist upon, compliance with any requirements or provisions of this Code. Regardless of the City's failure to seek compliance on any occasions, such action shall not be considered a waiver of any requirements of this Code. Sec. 33 -254. Future Changes in the Law The City's rights under this Article are coextensive with the City's rights under state law with regard to the use of the public right of way by telecommunication corporations (as defined by the Public Utilities Code). If future changes to state or federal law authorize the City to regulate the Utility and its activities within the City and the public rights of way to a greater degree than is now authorized by this article, nothing in this Article will be deemed to limit, restrict in any way, or to modify the City's exercise of that regulatory authority. Section 3. Any provision of the Code that is inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2011 Miguel A. Pulido Mayor 75A -17 lss2/25/ 11 APPROVED AS TO FORM: Joseph Straka, Interim City Attorney in Laura Sheedy Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75A -18 MAYOR �:' Miguel A. Pulido MAYOR PRO TEM++A Claudia C. Alvarez COUNCIL MEMBERS N P. David Benavides �,'a Carlos Bustamante Michele Martinez Vincent sam,iento Sal Tinaje ro CITY OF SANTA ANA PLANNING & BUILDING AGENCY 20 Civic Center Plaza (M -20) P.O. BOX 1988 • Santa Ana, California 92702 (714) 667 -2700 • Fax (714) 973 -1461 www.santa- ana.org NEGATIVE DECLARA T /ON CITY MANAGER David N. Ream CITY ATTORNEY Joseph Straka CLERK OF THE COUNCIL Patricia E. Healy Pursuant to the Procedures of the City of Santa Ana for implementation of the California Environmental Quality Act, the Environmental Evaluator has completed an Initial Study for the project described below: Project Number: Applicant: Project Location / Address: Project Title / Description: And does hereby find: OA- 2011 -01 City of Santa Ana Citywide Telecommunications Ordinance pOSTEQ uI CORDER rorn o�Y • �� OEPt1TY That the proposed project cannot, or will not, have a significant effect on the environment. Negative Declaration status is therefore granted for this project. No mitigation measures are required for the proposed project. Signature: VOW Date: Q vo nnmental Coordinator This determination is not Iffir until adopted by the decision- making body or administrative official, and a Notice of Determination is filed. 75A -19 REQUEST The proposed project is a request to amend the City of Santa Ana Municipal Code to adopt an ordinance to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way. PROJECT DESCRIPTION The proposed amendment to the Municipal Code would establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana. Below are the standards for the proposed Telecommunications Facilities in the Public Right of Way ordinance. Telecommunication Facilities in the Public Right of Way Proposed Regulations Item Recommendation Definitions (a) "Agency" means the City's Public Works Agency. (b) "Antenna array" means one or more rods, panels, discs, or similar devices used for the transmission or reception of radio frequency signals, which may include omni - directional antennas (whip), directional antennas (panel), and parabolic antennas (dish), but excluding any support structure. (c) "Director" means the Executive Director of �t the Public Works Agency or designee. 4O 05 ` (d) "Parkway" means that area between the sidewalk and the curb of any street, and where there is 8 oszv, sidewalk adjacent to the curb, that area between the �° , 131r-?\S11 sidewalk and the right of way line and where there is no sidewalk, that area between the curb or edge of the roadway and the right of way line adjacent thereto. (e) "Permit" means a permit issued pursuant to this Chapter allowing the placement of a telecommunication facility within a specifically designated portion --f the public right of way. (f) "Person" means any individual, firm, company, partnership, corporation, entity, agency, or other organization. 75A -20 (g) "Primary use" means the main purpose for which a site is developed and occupied, including the activities that are conducted on the site a majority of the hours which activities occur, including, but not limited to, a street light or power pole. (h) "Public sidewalk" means any surface dedicated to the use of pedestrians by license, easement, operation of law or by grant to the City. (i) "Public right of way" or "right -of -way" means the area on, below, or above a city owned or controlled street or alley public right of way and the sidewalk and /or parkway adjacent thereto. Q) "Roadway" means that portion of a public street improved, designed or ordinarily used for vehicular traffic. (k) "Shared use" means a site or facility where a wireless provider shares a telecommunications facility with an existing structure, such as a street light or utility pole or a similar replacement of an existing structure. (1) "Significant Gap" means a gap in the telecommunications signal, including geographic coverage, interference and capacity issues resulting in the inability of telecommunications users to reliably place, maintain or receive calls. P �1 ED (m) Support structure means a freestanding structure designed and constructed to solely support an antenna array and that may consist of a monopole, a *� p��y C1 ER FECOPDEI� �EPUTV self- supporting lattice tower, a guy -wire support tower, or other similar structure. (n) "Telecommunication Facility" means and includes any wire or line, antenna, pipeline, pipe, duct, conduit, converter, cabinet, pedestal, meter, tunnel, vault, equipment, drain, manhole, splice box, surface location marker, pole, structure, utility, or other appurtenance, property, or tangible thing used to provide telecommunications and /or video services to the public. o) "Work" means all labor. materials 75A -21 MAYOR Miguel A. Pulido MAYOR PRO TEM Claudia C. Alvarez COUNCIL MEMBERS P. David Benavides Carlos Bustamante Michele Martinez Vincent F. Sarmiento Sal Tinajero February 3, 2011 CITY OF SANTA ANA PLANNING & BUILDING AGENCY 20 Civic Center Plaza (M -20) P.O. BOX 1988 - Santa Ana, California 92702 (714) 667 -2700 • Fax (714) 973 -1461 www.santa- ana.org County Clerk/County of Orange P.O. Box 238 Santa Ana, CA 92702 To Whom It May Concern: CITY MANAGER David N. Ream CITY ATTORNEY Joseph Straka CLERK OF THE COUNCIL Maria D. Huizar Please post the following Notice of Exemptions. All fees should be charged to the City of Santa Ana account with the County Clerk. We would appreciate if you would send us a copy of each filed Notice Exemption. Please send the filed copies to: Thank you for your cooperation, Hally Sob eske Associate Planner HS HS: \1W i reless_Ordinance_C haper331n ecDec_cover.docx Hally Soboleske Associate Planner City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M -20) Santa Ana, CA 92702 (714) 667 -27459 75A -22 MAYOR Miguel A. Pulido � �E MAYOR PRO TEM Claudia C. Alvarez COUNCIL MEMBERS A AI P. David Benavides Carlos Bustamante Michele Martinez Vincent Sarrniento Sal Tinaja ro C CITY O F SANTA ANA NEGA T /VE DECLARA T /ON CITY MANAGER David N. Ream CITY ATTORNEY Joseph Straka CLERK OF THE COUNCIL Patricia E. Healy Pursuant to the Procedures of the City of Santa Ana for implementation of the California Environmental Quality Act, the Environmental Evaluator has completed an Initial Study for the project described below: Project Number: Applicant: Project Location / Address Project Title / Description: And does hereby find: OA- 2011 -01 City of Santa Ana Citywide Telecommunications Ordinance That the proposed project cannot, or will not, have a significant effect on the environment. Negative Declaration status is therefore granted for this project. No mitigation measures are required for the proposed project. Signature: Date: Q vi onmental Coordinator This determination is not final until adopted by the decision - making body or administrative official, and a Notice of Determination is filed. 75A -23 REQUEST The proposed project is a request to amend the City of Santa Ana Municipal Code to adopt an ordinance to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way. PROJECT DESCRIPTION The proposed amendment to the Municipal Code would establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana. Below are the standards for the proposed Telecommunications Facilities in the Public Right of Way ordinance. Telecommunication Facilities in the Public Right of Way Proposed Regulations Item Recommendation Definitions (a) "Agency" means the City's Public Works Agency. (b) "Antenna array" means one or more rods, panels, discs, or similar devices used for the transmission or reception of radio frequency signals, which may include omni - directional antennas (whip), directional antennas (panel), and parabolic antennas (dish), but excluding any support structure. (c) "Director" means the Executive Director of the Public Works Agency or designee. (d) "Parkway" means that area between the sidewalk and the curb of any street, and where there is sidewalk adjacent to the curb, that area between the sidewalk and the right of way line and where there is no sidewalk, that area between the curb or edge of the roadway and the right of way line adjacent thereto. (e) "Permit" means a permit issued pursuant to this Chapter allowing the placement of a telecommunication facility within . a specifically designated portion of the public right of way. (f) "Person" means any individual, firm, company, partnership, corporation, entity, agency, or other organization. 75A -24 (g) "Primary use" means the main purpose for which a site is developed and occupied, including the activities that are conducted on the site a majority of the hours which activities occur, including, but not limited to, a street light or power pole. (h) "Public sidewalk" means any surface dedicated to the use of pedestrians by license, easement, operation of law or by grant to the City. (i) "Public right of way" or "right -of -way" means the area on, below, or above a city owned or controlled street or alley public right of way and the sidewalk and /or parkway adjacent thereto. (j) "Roadway" means that portion of a public street improved, designed or ordinarily used for vehicular traffic. (k) "Shared use" means a site or facility where a wireless provider shares a telecommunications facility with an existing structure, such as a street light or utility pole or a similar replacement of an existing structure. j (1) "Significant Gap" means a gap in the telecommunications signal, including geographic coverage, interference and capacity issues resulting in the inability of telecommunications users to reliably place, maintain or receive calls. (m) "Support structure" means a freestanding structure designed and constructed to solely support an antenna array and that may consist of a monopole, a self- supporting lattice tower, a guy -wire support tower, or other similar structure. (n) "Telecommunication Facility" means and includes any wire or line, antenna, pipeline, pipe, duct, conduit, converter, cabinet, pedestal, meter, tunnel, vault, equipment, drain, manhole, splice box, surface location marker, pole, structure, utility, or other appurtenance, property, or tangible thing used to provide telecommunications and /or video services to the public. (o) "Work" means all labor, materials, 75A -25 RESPONSES TO ENVIRONMENTAL CHECKLIST The following is an analysis of potential environmental impacts associated with the proposed amendment to the Municipal Code to establish an ordinance to regulate telecommunication facilities to be installed in the public right of way. The analysis is based upon the City of Santa Ana Environmental Check List. The analysis focuses on impacts associated with approval of the proposed amendment to the municipal code. AESTHETICS A. Have a substantial adverse effect on a scenic vista? B. Damage scenic resources, including but not limited to trees, rock outpourings and historic buildings within a State highway? No Impact Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in adverse impacts to any scenic vista, or scenic resource because the standards are meant to uphold aesthetic values. Additionally, the City of Santa Ana is not the responsible agency for telecommunication facilities located on State Highways. C. Substantially degrade the existing visual character or quality of the site and its surroundings? No Impact 75A -26 equipment, services, and all other things necessary for a person to install a telecommunication facility in the public right of way, including without limitation any changes requested by the City, in accordance with this Article and all applicable laws and regulations. Zones Impacted by All zones Ordinance Nonconformance Grandfather only those facilities that were legally operating at the time of the ordinance. Responsibility of Application and fee required for permit Applicant Permit Issuance Upon finding the project meets all the requirements established by said ordinance, a permit may be issued by Executive Director of the Public Works Agency or designee. RESPONSES TO ENVIRONMENTAL CHECKLIST The following is an analysis of potential environmental impacts associated with the proposed amendment to the Municipal Code to establish an ordinance to regulate telecommunication facilities to be installed in the public right of way. The analysis is based upon the City of Santa Ana Environmental Check List. The analysis focuses on impacts associated with approval of the proposed amendment to the municipal code. AESTHETICS A. Have a substantial adverse effect on a scenic vista? B. Damage scenic resources, including but not limited to trees, rock outpourings and historic buildings within a State highway? No Impact Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in adverse impacts to any scenic vista, or scenic resource because the standards are meant to uphold aesthetic values. Additionally, the City of Santa Ana is not the responsible agency for telecommunication facilities located on State Highways. C. Substantially degrade the existing visual character or quality of the site and its surroundings? No Impact 75A -26 Establishment of development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not degrade the visual character of the City, in that the proposed ordinance serves to create development standards that uphold visual character. If anything, the ordinance would result in encouraging positive impacts to aesthetics. The ordinance would not result in any new development or construction. D. Create a new source of substantial light or glare, which would adversely affect day or nighttime views in the area? No Impact The proposed amendment to development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not introduce any amount of new light and glare impacts, in that the proposed ordinance would not have any effect on existing or potential onsite lighting. The proposed ordinance prohibits illumination unless specifically required by FAA or another governmental agency for security or clearance purposes. II. AGRICULTURE A. Convert Prime Farmland, Unique Farmland or Farmland of Statewide Importance to non - agriculture use? B. Conflict with existing zoning for agriculture use or a Williamson Contract? C. Involve other changes in the existing environment, which, due to their location or nature, could individually or cumulatively result in loss of Farmland, to non - agriculture use? No Impact According to the California Department of Conservation Farmland Mapping and Monitoring Program, the City of Santa Ana contains a limited amount of Prime and Unique Farmlands. Approval of the proposed amendment to the Municipal Code to development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in impacts to agriculture resources. III. AIR QUALITY A. Conflict with or obstruct implementation of applicable Air Quality Attainment Plan or congestion Management Plan? No Impact The City of Santa Ana is included within the South Coast Air Quality Management District and subject to the requirements of the Clean Air Act at both the Federal and 75A -27 State level. The South Coast Air Quality Management Plan (AQMP) is the primary planning document to monitor if air quality standards and objectives are being achieved in the South Coast Air Basin. The air quality objectives in the AQMP are based upon population and growth projections provided in regional planning programs and local general plans. A project could be in conflict with the AQMP if it results in population and growth impacts beyond those identified in regional planning programs and local general plans. The proposed ordinance to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not have any effect on the growth projections in the City's General Plan. Therefore, approval of the proposed ordinance would not be in conflict with the South Coast AQMP. B. Violate any stationary source air quality standard or contribute to an existing or proposed air quality violation? C. Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non - attainment under an applicable federal or state ambient air quality standard? D. Expose Sensitive receptors to substantial pollutant concentrations? E. Create objectionable odors affecting a substantial number of people? No Impact Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in any short-term construction related or long -term operational air quality impacts or odor impacts, in that approval of the proposed ordinance would not involve any activities that would emit long -term or short -term air quality emissions or odor pollutants. lll. BIOLOGICAL RESOURCES A. Have a substantial adverse impact, either directly or through habitat modifications, on any species identified as a candidate, sensitive or special status species in local or regional plans, policies or regulations or by the California Department of Fish and game or U.S. Fish and Wildlife Services? B. Have a substantial adverse impact on any riparian habitat or natural community identified in local or regional plans, policies, and regulations or by the California Department of Fish and game or U.S. Fish and Wildlife Service? C. Adversely impact federally protected wetlands either individually or in combination with the known or probable impacts of other activities through direct removal, filling hydrological interruption, or other means? D. Conflict with any local policies or ordinances protecting biological resources, such as tree preservation policy or ordinance? 75A -28 No Impact According to the City's Updated General Plan Land Use Element EIR and the California Department Fish and Game Natural Diversity Data Base, there is a limited amount of sensitive biological resources within the City. Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in any adverse impacts to any sensitive biological resources. The proposed ordinance does not affect any sensitive biological resources. IV. CULTURAL RESOURCES A. Cause a substantial adverse change in the significance of a historical resource as defined in Section 15064.5? B. Cause a substantial adverse change in the significance of a unique archaeological resource pursuant to Section 15064.5? C. Directly or indirectly disturb or destroy a unique paleontogical resource or site? D. Disturb any human remains, including those interred outside of formal cemeteries. No Impact According to the City's General Plan Land Use Element EIR, the City of Santa Ana is known to contain known many cultural resources. Additionally, according to the General Plan Land Use Element EIR there is high probability that unknown cultural resources may exist in the City. Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana does not affect any existing structures, buildings, or sites. As determined by previous citywide surveys, there are no historic streetlamps, posts, or poles within the city limits. V. GEOLOGY /SOILS A -1. Rupture of a known earthquake fault, as delineated on the most recent Alquist - Priolo Earthquake Fault Zoning Map issued by the State geologist for the area or based on other substantial evidence of a known fault? A -2. Strong Seismic Ground shaking? A -3. Seismic - related ground failure, including liquefaction? A-4. Landslides No Impact According to the City's General Plan Land Use Element EIR there are no active earthquake faults, Alquist - Priolo Earthquake Zones or landslides within the City. However, several active faults are located within fifty miles of the City. In the event a 75A -29 moderate to high earthquake occurs along one of these faults, portions of the City could experience moderate seismic shaking impacts. However, the seismic risks in Santa Ana are similar to other areas in the overall southern Californian region. Additionally, according to the General Plan Land Use Element EIR, the potential for liquefaction hazards within the City ranges from very low to very high. Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not increase the potential for seismic impacts, and liquefaction impacts, in that the approval of proposed ordinance would not directly involve the development of any structures, objects, buildings or sites. B. Would the project result in substantial soil erosion or the loss of topsoil? No Impact Approval of the proposed amendment to the Municipal Code to establish an development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in or increase the potential for soil erosion or sedimentation impacts, in that the approval of the proposed ordinance would not involve any activities that would disturb soils. Through the permitting process any new telecommunication devices would be subject to the City's erosion control requirements during the construction period. C. Would the project result in the loss of a unique geological feature? No Impact According to the City's General Plan Land Use Element EIR there are no known geological hazards or unique geologic features in the City. Therefore, approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in the loss of any unique geologic features. D. In the project located on strata or soil that is unstable or that would become unstable as a result of the project and potentially result in on -or off -site landslide, lateral spreading, subsidence, liquefaction or collapse? E. Where sewers are not available for the disposal of wastewater is the soil capable of supporting the use of septic tanks or alternative wastewater disposal systems? No Impact 75A -30 According to the City's General Plan Land Use Element EIR, Santa Ana contains a wide variety of soil types and associated geotechnical constraints. Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not involve the construction of any structures that would be subject to geotechnical constraints. Through the permit process, any new telecommunication facilities would be subject to the City's wastewater disposal and storm water drainage laws. However, this ordinance does not directly involve the development of any structures, objects, buildings or sites. VI. HAZARDS /HAZARDOUS MATERIALS A. Create a significant hazard to the public or the environment through the routine transport, use or disposal of hazardous materials? B. Emit hazardous emissions or handle hazardous or acutely hazardous materials, substance or waste within one - quarter mile of an existing or proposed school? C. Be located on a site which is located on a list of hazardous material sites compiles pursuant to Government Code Section 659662.5 and, as a result, would it create a significant hazard to the public or the environment? No Impact Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in the creation of or increase the potential of any significant hazardous material impacts to the public, in that the approval of the proposed ordinance would not involve any activities that would include the handling, storage or distribution of hazardous materials or emit hazardous emissions. This ordinance does not directly involve the development or construction of any structures, objects, buildings or sites. D. For a project located within an airport land use plan or where such a plan has not been adopted, within two miles where a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? No Impact According to the City's General Plan Land Use Element EIR and the Orange County Airports Environs Land Use Plan, Santa Ana is not located within any aircraft accident potential zones. Additionally, there are no private airstrips in the City. Therefore, approval of the proposed amendment to the Municipal Code would not increase the potential for safety hazards for people residing in or working within the City. 75A -31 VII. HYDROLOGY/WATER QUALITY A. Violate Regional Water Quality Control Board water quality standards or waste discharge requirements? E. Otherwise substantially degrade water quality? I. Result in an increase in pollutant discharges to receiving waters? N. Tributary to an already impaired water body, as listed on the Clean Water Act Section 303(d) list. If so, can it result in an increase in any pollutant of which the body is already impaired? R. Cause or contribute to an exceedance of applicable surface or groundwater receiving water quality objectives or degradation of beneficial uses? No Impact The City of Santa Ana is included within four watersheds; San Diego Creek, Santa Ana River, Talbert and Westminster. Each of these watershed areas are under the jurisdiction of the Santa Ana Regional Water Quality Control Board and subject to the objectives, water quality standards and Best Management Practice requirements established in the Santa Ana River Basin Plan and Orange County Drainage Area Management Plan. The City of Santa Ana does not contain any impaired water bodies, as defined by Section 303 of the Clean Water Act. However, the City does contain several drainage facilities that convey surface water runoff into bodies of water that are classified as impaired. Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not directly involve routine waste discharges that would be in conflict with water quality standards established by the State Regional Water Quality Control Board, in that the approval of the proposed ordinance would not involve any construction activity that would involve the discharge of water. B. Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level. Q. Have a potentially significant adverse impact on groundwater quality? No Impact 75A -32 The City of Santa Ana receives 66% of its water from underground water supplies. The underground water basin in the City ranges from —50 -feet to +40 -feet above sea level. Presently, the City pumps underground water from 21 water wells. Fourteen of the water wells pump ground water into small surface reservoirs. The remaining seven water wells pump underground water into the City's distribution system. Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in adverse impacts to underground water supplies or prevent the recharge of underground water supplies, in that approval of the proposed ordinance would not involve any activities that would impact underground water supplies or provide impervious surfaces that would prevent the recharge of underground water supplies. C. Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of stream or river, or substantially increase the rate or amount of surface runoff in a manner, which would result in flooding on or off -site? D. Create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted run -off? L. Result in increased impervious surfaces and associated runoff? M. Create a significant adverse environmental impact to drainage patterns due to changes in runoff flow rates or volumes. No Impact The City of Santa Ana has a Master Plan of Drainage to guide the construction of adequate drainage facilities in the City. The facilities include a series of underground storm drain systems, open storm drain systems, catch basins and natural drainages. A significant drainage impact can occur when existing rates of surface water runoff are increased and existing drainage facilities are unable to accommodate the additional rates of runoff. Existing rates of surface water runoff can increase through the introduction of additional amounts of impervious surfaces, or through changes to existing drainage patterns. Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not alter existing drainage patterns or increase existing rates of surface water runoff, in that approval of the proposed ordinance would not introduce any additional impervious surfaces or involve the development of any activities that would impact existing drainage patterns. 75A -33 F. Place housing within a 100 -year floodplain, as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? G. Place within a 100 -year floodplain structures which would impede or redirect flood flows? H. Place housing within a 100 -year floodplain, as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? No Impact The City's General Plan identifies that portions of Santa Ana are within the 100 -year flood Zone. Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not facilitate development within areas subject to 100 -year flood risks. J. Result in significant alteration of receiving water quality during or following construction. K. Could the proposed project result in increased erosion downstream? No Impact Erosion refers to the removal of soil from exposed bedrock surfaces by water or wind. The effects of erosion are intensified with an increase in slope, the narrowing of runoff channels and by the removal of groundcover, which leaves the soil exposed. Approval of the proposed ordinance would not result in any erosion impacts, in that the proposed amendments would not involve any construction activities that would disturb or uncover soils to facilitate erosion impacts. O. Tributary to other environmentally sensitive areas? If so, can it exacerbate already existing sensitive conditions? P. Have a potentially significant environmental impact or surface water quality to either marine, fresh or wetland waters? S. Impact aquatic, wetland or riparian habitat? No Impact According to the City's General Plan Land Use Element EIR, there are no sensitive marine waters, fresh waters or wetlands in the City. However, the City does contain several drainage systems that convey drainage flows to sensitive marine resources. Pollutants conveyed through these drainage systems could adversely impact sensitive marine resources. Approval of the proposed ordinance would not result in any activities 75A -34 that would discharge pollutants into sensitive downstream marine resources as it involves no construction activity. VIII. LAND USE /PLANNING A. Physically divide an established community? No Impact The proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would provide location criteria and design standards to ensure that telecommunication facilities installed in the right of way would not encroach into private property boundaries. No adverse land use impacts would be associated with the approval of the proposed ordinance. B. Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project adopted for the purpose of avoiding or mitigating an environmental effect? No Impact The proposed project would amend the City's Municipal Code by establishing an ordinance that provides criteria for the location and development of telecommunication facilities installed in the right of way in the City of Santa Ana. Approval of the proposed ordinance would not be in conflict with any portion of the City's General Plan or any other relevant planning program in the City. C. Conflict with any applicable habitat conservation plan or natural community plan? No Impact According to the City's General Plan Land Use Element EIR, there are no habitat conservation plans or natural community conservation plans established within the City of Santa Ana. Therefore, approval of the proposed ordinance would not be in conflict with any habitat conservation or natural community conservation plan. IX. MINERAL RESOURCES A. Result in the loss of availability of a locally important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? 75A -35 No Impact The City's General Plan Land Use Element EIR identifies that there are no areas in Santa Ana that contains Significant Mineral Aggregate Resource Areas. Therefore, approval of the proposed ordinance would not result in adverse impacts to any significant mineral resource. X. NOISE A. Exposure of persons to or generation of noise levels in excess of standards established in local general plan or noise ordinance, or applicable standards of other agencies. B. A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project. C. Exposure of persons to or generation of excessive groundborne vibration or groundborne noise levels. D. A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without project. No Impact Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not result in any long -term noise or ground borne vibration impacts, in that the proposed ordinance would not involve any activities that would emit long term operation noise impacts or short term construction related noise impacts. Through the conditional use permit process, future telecommunication facilities constructed under the proposed ordinance would be evaluated for any potential noise impacts and would be subject to the City's noise standards. E. For a project located within an airport land use plan or where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? No Impact According to the Orange County Airport Environs Land Use Plan portions of Santa Ana are impacted by aircraft noise. Approval of the amendment to the Municipal Code to establish an ordinance for the regulation of telecommunication facilities installed in the City's right of way would not facilitate further development within areas impacted with aircraft noise. XI. POPULATION /HOUSING 75A -36 A. Induce substantial population growth in an area, either directly or indirectly through extension of roads or other infrastructure. B. Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere. C. Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? No Impact The proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not induce substantial growth in the City or displace substantial numbers of existing housing or population, in that approval of the proposed ordinance would not involve any activities that would generate additional population or displaces homes and /or population. XII. PUBLIC SERVICES Fire Protection, Police Protection, Schools, Parks, Other Public Facilities No Impact Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not increase the demand for additional public services over current levels of service being provided in the City, in that the approval of the proposed ordinance would not involve any activities that would substantially increase the demands for public services. The proposed ordinance actually increases the potential for providing public services. XIII. RECREATION A. Would the project increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? B. Does the project include recreational facilities or require the construction or expansion of recreational facilities, which might have an adverse physical effect on the environment. No Impact Approval of the proposed ordinance would not increase the use of any recreational facilities or result in the significant need for additional recreational facilities, in that the proposed ordinance would not involve any activities that would increase the demands for recreational facilities. No adverse impacts to recreation facilities would be associated with the approval of proposed ordinance. 75A -37 XIV. TRANSPORTATION /TRAFFIC A. Cause an increase in traffic, which is substantial in relation to the existing traffic load and capacity of the street system? B. Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? C. Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? D. Substantially increase hazards to a design feature E. Result in inadequate emergency access F. Result in inadequate parking capacity G. Conflict with adopted policies supporting alternative transportation No Impact Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not have an impact on traffic volumes, roadway configurations, parking capacities, emergency access or level of services established in the County of Orange Congestion Management Plan, in that the proposed ordinance would not involve any activities that would generate additional traffic or parking needs. XV. UTILITIES /SERVICE SYSTEMS A. Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? B. Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? C. Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? D. Are sufficient water supplies available to serve the project from existing entitlements and resources or are new or expanded entitlements needed? E. Result in the determination by the wastewater treatment provider, which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the providers existing commitments. F. Is the project served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? G. Comply with federal, state and local statutes and regulations related to solid waste? NM115190� No Impact Approval of the proposed amendment to the Municipal Code to establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana would not increase the demand for additional utilities and service systems over current levels of service being provided in the City, in that the proposed ordinance would not involve any activities that would increase the demands for utility systems. The proposed ordinance actually increases the potential for providing public services /public utilities such as telecommunication services. XVI. MANDATORY FINDINGS OF SIGNIFICANCE A. Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self- sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory. No Impact The proposed ordinance would not have a direct impact on any plant or wildlife species or historical property in Santa Ana, in that the proposed ordinance would not involve any activities that would impact plant, wildlife or historic resources or degrade the quality of the environment. B. Does the project have impacts that are individually limited but cumulatively considerable? No Impact Approval of the proposed ordinance would not result in any significant cumulative impacts, in that the proposed ordinance would not involve any activities that would result in cumulative impacts to the environment. C. Does the project have environmental effects, which will cause substantial adverse effects on human beings either directly or indirectly? No Impact Approval of the proposed ordinance would not cause any substantial adverse effects on human beings, in that the proposed ordinance would not involve any activities that would result in adverse effects to human beings or the environment. 75A -39 XVIII. DETERMINATION Based upon the evidence in light of the whole record documented in the above evaluation and cited references, I find that the proposed project would not have a significant impact on the environment and a Negative Declaration has been prepared. XVIV. REFERENCES City of Santa Ana General Plan, 1997 City of Santa Ana, General Plan EIR, 1997 California Environmental Quality Act Guidelines California Department of Conservation Farmland Mapping and Monitoring Program South Coast Air Quality Management District Air Quality Management Plan California Department of Fish and Game Natural Diversity Data Base Orange County Airport Environs Land Use Plan XX. PREPARER Hally Soboleske, Associate Planner, City of Santa Ana 75A -40 Environmental Checklist CEQA Compliance PLANNING DIVISION 1. Project Title: Telecommunications Ordinance II. Project Numbers:—OA-2011-01 III. Lead Agency Name and Address: City of Santa Ana, Public Works Agency, 20 Civic Center Plaza, Santa Ana, CA 92702 IV. Contact and Phone Number: Taia Higgins, Principal Civic Engineer, 714 - 647 -5071 V. Project Location: Citywide VI. Project Sponsor's Name and Address: City of Santa Ana, Public Works Agency, 20 Civic Center Plaza, Santa Ana, CA 92702 VII. General Plan Designation: N/A — Citywide Ordinance VIII. Zoning: N/A — Citywide Ordinance IX. Description of Project: The proposed amendment to the Municipal Code would establish development standards and a permitting process for the installation of telecommunication devices in the public right of way within the City of Santa Ana. Below are the standards for the proposed Telecommunications Facilities in the Public Right of Way ordinance. X. Surrounding Land Uses and Setting: N/A — Citywide Ordinance XI. Other agencies whose approval is required. N/A 75A-41 Page 1 of 2 Environmental Checklist CEQA Compliance Environmental Factors Potentially Affected: The environmental factors checked below would be potentially affected by that project, involving at least one impact that is a "Potentially Significant Impact' as indicated by the checklist on the following pages. O Aesthetics O Agricultural Resources O Air Quality O Biological Resources O Cultural Resources O Geology and Soils O Hazards and Hazardous Materials O Hydrology and Water Quality O Land Use and Planning Environmental Determination On the basis of this initial evaluation, I find that: O Mineral Resources O Noise O Population and Housing O Public Services O Recreation O Transportation and Traffic O Utilities and Service Systems O Mandatory Findings of Significance A. ® The proposed project COULD NOT have a significant effect on the environment and a NEGATIVE DECLARATION will be prepared. B. ❑ Although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions to the project have been made by or agreed to by the applicant. A MITIGATED NEGATIVE DECLARATION will be prepared. C. ❑ The proposed project MAY have a significant effect on the environment and an ENVIRONMENTAL IMPACT REPORT is required. D. ❑ Although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR (EIR No. - ) pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the project, nothing further is required. E. ❑ Pursuant to Section 15164 of the CEQA Guidelines, an EIR (EIR No. - ) has been prepared earlier and only minor technical changes or additions are necessary to make the previous EIR adequate and these changes do not raise important new issues about the significant effects on the environment. An ADDENDUM to the EIR shall be prepared. F. ❑ Pursuant to Section 15162 of the CEQA Guidelines, an EIR (EIR No. - ) has been prepared earlier; however, subsequent proposed changes in the project and/or new information of substantial importance will cause one or more significant effects no previously discussed. A SUBSEQUENT EIR shall be prepared. Signature Dale .9411\1 Printed N me 75A -42 Page 2 of 2 Responses to Environmental Checklist For CEQA Compliance Evaluation of Environmental Impacts: A brief explanation is required for all answers except "No Impact" answers that are adequately supported by the information sources a lead agency cites in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved (e.g., the project falls outside a fault rupture zone). A "No Impact" answer should be explained where it is based on project- specific factors as well as general standards (e.g., the project will not expose sensitive receptors to pollutants, based on a project- specific screening analysis). All answers must take account of the whole action involved, including off -site as well as on -site, cumulative as well as project - level, indirect as well as direct, and construction as well as operational impacts. 111. Once the lead agency has determined that a particular physical impact may occur, then the checklist answers must indicate whether the impact is potentially significant, less than significant with mitigation, or less than significant. "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect may be significant. If there are one or more "Potentially Significant Impact" entries when the determination is made, an EIR is required. IV. "Negative Declaration: Less Than Significant With Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant Impact." The lead agency must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level (mitigation measures from "Earlier Analyses," as described in (V) below, may be cross - referenced). V. Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case, a brief discussion should identify the following: a) Earlier Analysis Used. Identify and state where they are available for review. b) Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c) Mitigation Measures. For effects that are "Less than Significant with Mitigation Measures Incorporated," describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site - specific conditions for the project. VI. Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (e.g., general plans, zoning ordinances). Reference to a previously prepared or outside document should, where appropriate, include a reference to the page or pages where the statement is substantiated. VII. Supporting Information Sources: A source list should be attached, and other sources used or individuals contacted should be cited in the discussion. VIII. This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies should normally address the questions from this checklist that are relevant to a project's environmental effects in whatever format is selected. IX. The explanation of each issue should identify: a) The significance criteria or threshold, if any, used to evaluate each question; and b) The mitigation measure identified, if any, to reduce the impact to less than significance 75A -43 II. Agricultural Resources — In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model prepared by the California Department of Conservation as an optional model to use in assessing impacts on agricultural and farmland. Would the project: A. Convert Prime Farmland, Unique Farmland or ❑ ❑ ❑ X Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non - agricultural use? B. Conflict with existing zoning for agricultural use, or a ❑ Williamson Contract? C. Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland, to non - agricultural use? 75A-44 LE ❑ ❑ rQ ❑ ❑ Responses to 101 Environmental Checklist For CEQA Compliance Less than Significant Potentially with Less Than Issues & Supporting Information Sources ® Significant Impact Mitigation Incorporated Significant No Impact Impact I. Aesthetics — Would the project: A. Have a substantial adverse effect on a scenic vista? ❑ ❑ ❑ B. Damage scenic resources, including but not limited ❑ ❑ ❑ to, trees, rock outcroppings and historic buildings within a state highway? C. Substantially degrade the existing visual character or quality of the site and its surroundings? ❑ ❑ ❑ D. Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area? ❑ ❑ ❑ II. Agricultural Resources — In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model prepared by the California Department of Conservation as an optional model to use in assessing impacts on agricultural and farmland. Would the project: A. Convert Prime Farmland, Unique Farmland or ❑ ❑ ❑ X Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non - agricultural use? B. Conflict with existing zoning for agricultural use, or a ❑ Williamson Contract? C. Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland, to non - agricultural use? 75A-44 LE ❑ ❑ rQ ❑ ❑ Issues & Supporting Information Sources Responses to Environmental Checklist For CEQA Compliance Less than Significant Potentially with Less Than Significant Mitigation Significant No Impact Incorporated Impact Impact III. Air Quality —Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: A. Conflict with or obstruct implementation of ❑ ❑ ❑ applicable Air Quality Attainment Plan or Congestion Management Plan? B. Violate any stationary source air quality standard or ❑ ❑ ❑ JZ contribute to an existing or proposed air quality violation? C. Result in a cumulatively considerable net increase ❑ ❑ ❑ of any criteria pollutant for which the project region is non - attainment under an applicable federal or state ambient air quality standard (including releasing emission which exceeds quantitative thresholds for ozone precursors)? D. Expose sensitive receptors to substantial pollutant ❑ ❑ ❑ concentrations? E. Create objectionable odors affecting a substantial ❑ ❑ ❑ number of people? IV. Biological Resources — Would the project: A. Have a substantial adverse impact, either directly ❑ ❑ ❑ or through habitat modifications, on any species identified as a candidate, sensitive or special status species in local or regional plans, policies or regulations or by the California Department of Fish and Game or U.S. Fish and Wildlife Services? B. Have a substantial adverse impact on any riparian ❑ ❑ ❑ (� habitat or other sensitive natural community identified in local or regional plans, policies, and regulations or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? 75A -45 75A -46 Responses to Environmental Checklist For CEQA Compliance Less than Significant Potentially with Less Than Significant Mitigation Significant No Issues & Supporting Information Sources ® Impact Incorporated Impact Impact C. Adversely impact federally protected wetlands ❑ ❑ ❑ (including, but not limited to, marsh, vernal pool, coastal, etc.) either individually or in combination with the known or probable impacts of other activities through direct removal, filling, hydrological interruption, or other means? D. Interfere with the movement of any native resident ❑ ❑ ❑ or migratory fish or wildlife species or with established native resident or migratory wildlife corridors or impede the use of native wildlife nursery sites. E. Conflict with any local policies or ordinances ❑ ❑ ❑ protecting biological resources, such as tree preservation policy or ordinance? F. Conflict with the provisions of an adopted Habitat ❑ ❑ ❑ Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? V. Cultural Resources — Would the project: A. Cause a substantial adverse change in the ❑ ❑ ❑ significance of a historical resource as defined in Section 15064.5? B. Cause a substantial adverse change in the ❑ ❑ ❑ significance of a unique archaeological resource pursuant to Section 15064.5? C. Directly or indirectly disturb or destroy a unique ❑ ❑ ❑ paleontological resource or site or unique geological feature? D. Disturb any human remains, including those ❑ ❑ ❑ interred outside of formal cemeteries? 75A -46 Responses to Environmental Checklist For CEQA Compliance Issues & Supporting Information Sources VI. Geology and Soils — Would the project: A. Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: 1. Rupture of a known earthquake fault, as delineated on the most recent Alquist- Priolo Earthquake Fault Zoning map issued by the State Geologist for the area or based on other substantial evidence of a known fault? 2. Strong seismic ground shaking? 3. Seismic - related ground failure, including liquefaction? 4. Landslides? B. Would the project result in substantial soil erosion or the loss of topsoil? C. Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off -site landslide, lateral spreading, subsidence, liquefaction or collapse? D. Be located on expansive soil, as defined in Table 18 -1 -B of the Uniform Building Code (1994) creating substantial risks to life or property? E. Have soils incapable of adequately supporting the use of septic tanks or alternative waste water disposal systems where sewers are not available for the disposal of waste water? 75A -47 Less than Significant Potentially with Less Than Significant Mitigation Significant No Impact Incorporated Impact Impact ❑ ❑ ❑ �( ❑ ❑ ❑ e ❑ ❑ ❑ �l ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ till i Responses to Environmental Checklist For CEQA Compliance Less than Significant Potentially with Less Than Significant Mitigation Significant No Issues & Supporting Information Sources ® Impact Incorporated Impact Impact VII. Hazardous and Hazardous Materials — Would the project: A. Create a significant hazard to the public or the ❑ ❑ ❑ environment through the routine transport, use or disposal of hazardous materials? B. Create a significant hazard to the public or the ❑ ❑ ❑ g environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment. C. Emit hazardous emissions or handle hazardous or ❑ ❑ ❑ acutely hazardous materials, substance or waste within one - quarter mile of an existing or proposed school? D. Be located on a site which is located on a list of ❑ ❑ ❑ hazardous materials sites compiled pursuant to Government Code Section 659662.5 and, as a result, would it create a significant hazard to the public or the environment? E. For a project located within an airport land use plan ❑ ❑ ❑ RJ or where such a plan has not been adopted, within two miles where of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? F. For project within the vicinity of a private airstrip, ❑ ❑ ❑ would the project result in a safety hazard for people residing or working in the project area? G. Impair implementation of or physically interfere with ❑ ❑ ❑ an adopted emergency response plan or emergency evacuation plan? H. Expose people or structures to a significant risk of ❑ ❑ ❑ pj loss, injury or death involving wild fires, including i- where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? •� Responses to IN Environmental Checklist For CEQA Compliance ❑ ❑ Less than J� exceed the capacity of existing or planned storm Significant Potentially with Less Than water drainage systems or provide substantial Significant Mitigation Significant No Issues & Supporting Information Sources ® Impact Incorporated Impact Impact Vlll. Hydrology and Water Quality — Would the project: A. Violate any Regional Water Quality Control Board ❑ ❑ ❑ JAI' water quality standards or waste discharge ❑ requirements? ❑ ❑ B. Substantially deplete groundwater supplies or ❑ ❑ ❑ interfere substantially with groundwater recharge such that there would be a net deficit in aquifer Flood Insurance Rate Map or other flood hazard volume or a lowering of the local groundwater table level (i.e., the production rate of pre- existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? C. Substantially alter the existing drainage pattern of ❑ ❑ ❑ the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or situation on or off -site. or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on or off -site? D. Substantially alter the existing drainage pattern of ❑ ❑ ❑ the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on or off - site? E. Create or contribute runoff water which would ❑ ❑ ❑ J� exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted run -off? F. Otherwise substantially degrade water quality? ❑ ❑ ❑ G. Place housing within a 100 -year flood hazard area ❑ ❑ ❑ as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? 75A -49 Issues & Supporting Information Sources Responses to Environmental Checklist For CEQA Compliance Less than Significant Potentially with Less Than Significant Mitigation Significant No Impact Incorporated Impact Impact H. Place within a 100 -year flood hazard area ❑ ❑ ❑ structures which would impede or redirect flood flows? I. Expose people or structures to a significant risk of ❑ ❑ ❑ J� loss, injury, or death involving flooding, including flooding as a result of the failure of a levee or dam. J. Inundation by seiche, tsunami, or mudflow? ❑ ❑ ❑ IX. Land Use and Planning — Would the project: A. Physically divide an established community? ❑ ❑ ❑ B. Conflict with any applicable land use plan, policy, or ❑ ❑ ❑ regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? C. Conflict with any applicable habitat conservation ❑ ❑ ❑ plan or natural community conservation plan? X. Mineral Resources — Would the project: A. Result in the loss of availability of a known mineral ❑ ❑ ❑j resource that would be of value to the region and the residents of the state? B. Result in the loss of availability of a locally important Mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? 75A -50 Responses to In Environmental Checklist For CEQA Compliance Less than Significant Potentially with Less Than Significant Mitigation Significant No Issues & Supporting Information Sources ® Impact Incorporated Impact Impact A. Noise — Would the project result in: A. Exposure of persons to or generation of noise ❑ ❑ ❑ levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? B. Exposure of persons to or generation of excessive ❑ ❑ ❑ R( groundborne vibration or groundborne noise levels? C. A substantial permanent increase in ambient noise ❑ ❑ ❑ levels in the project vicinity above levels existing without the project? ❑ ❑ ❑ D. A substantial temporary or periodic increase in ❑ ❑ ❑ ambient noise levels in the project vicinity above levels existing without project? ❑ ❑ ❑ E. For a project located within an airport land use plan ❑ ❑ ❑ or or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? F. For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? XII. Population and Housing — Would the project: A. Induce substantial population growth in an area, ❑ ❑ ❑ R( either directly (for example, by proposing new homes and business) or indirectly (for example, through extension of roads or other infrastructure)? B. Displace substantial numbers of existing housing, ❑ ❑ ❑ necessitating the construction of replacement housing elsewhere? C. Displace substantial numbers of people, ❑ ❑ ❑ necessitating the construction of replacement housing elsewhere? 75A -51 Responses to In Environmental Checklist For CEQA Compliance Less than Significant Potentially with Less Than Significant Mitigation Significant No Issues & Supporting Information Sources ® Impact Incorporated Impact Impact XIII. Public Services A. Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service rations, response times or other performance objectives for any of the public service: 1. Fire protection? ❑ ❑ ❑ 2. Police protection? ❑ ❑ ❑ 3. Schools? ❑ ❑ ❑ 4. Parks? ❑ ❑ ❑ 5. Other public facilities? ❑ ❑ ❑ XIV. Recreation A. Would the project increase the use of existing ❑ ❑ ❑ neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? B. Does the project include recreational facilities or ❑ ❑ ❑ require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? 75A -52 Responses to Environmental Checklist For CEQA Compliance Issues & Supporting Information Sources XV. Transportation /Traffic A. Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? B. Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? C. Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? D. Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? E. Result in inadequate emergency access? F. Result in inadequate parking capacity? G. Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? Less than Significant Potentially with Less Than Significant Mitigation Significant No Impact Incorporated Impact Impact ❑ ❑ ❑ 0 ❑ ❑ ❑ )e ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ XVI. Utilities and Service Systems A. Exceed wastewater treatment requirements of the ❑ applicable Regional Water Quality Control Board? 75A -53 ❑ ❑ 2f Responses to Environmental Checklist For CEQA Compliance Issues & Supporting Information Sources B. Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? C. Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? D. Are sufficient water supplies available to serve the project from existing entitlements and resources or are new or expanded entitlements needed? E. Result in the determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? F. Is the project served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? G. Does the project comply with federal, state and local statutes and regulations related to solid waste? 75A -54 ❑ ❑ ❑ z ❑ Less than ❑ 0 Significant ❑ Potentially with Less Than Significant Mitigation Significant No Impact Incorporated Impact Impact ❑ ❑ ❑ 2T ❑ ❑ ❑ z ❑ ❑ ❑ 0 ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Responses to " Environmental Checklist For CEQA Compliance Less than Significant Potentially with Less Than Significant Mitigation Significant No Issues & Supporting Information Sources ® Impact Incorporated Impact Impact XVIL Mandatory Findings of Significance A. Does the project have the potential to degrade the ❑ ❑ ❑ Zf quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self- sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? B. Does the project have impacts that are individually ❑ ❑ ❑ limited but cumulatively considerable? ( "Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, effects of other current projects and the effects of probable future projects.) C. Does the project have environmental effects which ❑ ❑ ❑ will cause substantial adverse effects on human beings, either directly or indirectly? M:\ wireless_Ordinance_Chapter33 \Te lecom_2011_i nitialstudy. doc 75A -55 75A -56 Iss:3/7/11 RESOLUTION NO. 2011 -xxx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA SETTING THE AMOUNT OF PERMIT AND INSPECTION FEES FOR APPLICATIONS TO INSTALL TELECOMMUNICATION FACILITIES IN THE PUBLIC RIGHT OF WAY PURSUANT TO SECTION 33 -237 OF THE SANTA ANA MUNICIPAL CODE AND ADDING SAID INCREASED FEES AND CHARGES TO THE MISCELLANEOUS FEE SCHEDULE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Section 33 -237 of the Santa Ana Municipal Code (Code), adopted by Ordinance No NS — XXXX, regulates the installation of telecommunication facilities in the public right of way, and authorizes the City Council to establish by resolution, a permit processing fee to recover City costs in reviewing applications for such installations. B. The City Council finds as to this fee: It is appropriate that the provider desiring to place facilities in the public right of way pay the reasonable cost of the City's services in reviewing the application and inspecting the installation of the telecommunication facility to ensure compliance with the ordinance. 2. The fee for this service would not duplicate any existing fee or charge currently collected by the City or any public agency, and would be distinct and separate from any current or future permit fee charged pursuant to the City's rules and regulations relating to telecommunication facilities in the right of way. C. Based on the City's study the cost of processing an application for siting telecommunication facilities in the right of way exceeds the permit processing fee which will be imposed. A study confirming these facts in greater detail is on file with the Clerk of the Council and is incorporated herein by reference as though fully set forth. 75A -57 D. Based upon all the testimony, reports and other evidence submitted on this matter, this City Council makes the above specific findings. Request For Council Action regarding this Resolution, together with Ordinance No. NS- XXXX, and all background information and studies presented to the City Council at the March 21, 2011, meeting are incorporated herein by this reference as though fully set forth. E. Unless otherwise indicated, the definitions set forth in Section 33 -231 shall govern the application and interpretation of this resolution. Section 2. An application processing fee in the amount of $918.15, and a permit fee of $637.96 shall be collected by the Santa Ana Public Work Agency with the receipt of each application to install telecommunication facilities in the public right of way. Section 3. If any charge, fee, service charge, section, subsection, sentence, clause, phrase or word of this Resolution is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have passed and adopted this Resolution, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid. Section 4. This Resolution shall take effect upon the approval of Ordinance No. NS- and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. Should said Ordinance not be adopted, or should said Ordinance not become effective, this Resolution shall be deemed null and void and of no further effect. Section 5. That without further action of the City Council the fees, charges and surcharges established by this resolution shall be incorporated into the City's Miscellaneous Fee Schedule. ADOPTED this day of , 2011. Miguel A. Pulido Mayor 75A -58 APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Laura Sheedy Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify 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 75A -59 EXHIBIT A TELECOMMUNICATIONS FACILITY PERMIT PROCESSING FEE STUDY "W_Qlefi Public ROW Telecommunications Permit Task Pre - Submittal Field Meeting Notify Attendees and set Meeting Personnel Rate Time (Hours) Cost Asst Engineer $ 88.63 0.5 $44.31 Prep for Field Meeting Principal Engineer $ 130.63 0.5 $65.31 Asst Engineer $ 88.63 0.5 $44.31 Field Meeting Principal Engineer $ 130.63 1 $130.63 Asst Engineer $ 88.63 1 $88.63 Submittal Receive and Login Plan Check Application Asst Engineer $ 88.63 0.5 $44.31 Send Notications Asst Engineer $ 88.63 0.5 $44.31 Admin $ 33.01 0.5 $16.51 RF Consultant Coordination (send Ap) Asst Engineer $ 88.63 0.5 $44.31 Admin $ 33.01 0.5 $16.51 Review, comment application & make available (1st Round) Senior Engineer * $ 104.90 0 $0.00 Asst Engineer * $ 88.63 0 $0.00 RF Consultant Coordination (receive and review report) Principal Engineer $ 130.63 0.5 $65.31 Senior Engineer $ 104.90 0.5 $52.45 Recieve and Respond to comments Principal Engineer $ 130.63 2 $261.25 Processing Total $918.15 Permit Receive and Login Permit Application Asst Engineer $ 88.63 1 $88.63 Insurance & License Coordination and Issue Permit Asst Engineer $ 88.63 1 $88.63 Review and Cordination Principal Engineer $ 130.63 2 $261.25 Inspection Inspector $ 66.49 3 $199.46 $637.96 Permit Total Burden per TC Rates Hourly for support Burdened Rate Principal Engineer $ 104.50 $ 1.25 130.63 Senior Engineer $ 83.92 $ 1.25 104.90 Asst Engineer $ 70.90 $ 1.25 88.63 Admin $ 26.41 $ 1.25 33.01 Inspector $ 53.19 $ 1.25 66.49 * = Separate Charge 75A -61 75A -62 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: PUBLIC HEARING — GENERAL PLAN AMENDMENT NO. 2011 -01 TO CIRCULATION ELEMENT BIKEWAY MASTER PLAN TO INCLUDE A CLASS II (ON ROAD) BIKE LANE ON MEMORY LANE BETWEEN BRISTOL STREET AND FLOWER STREET, AND FLOWER STREET BETWEEN MEMORY LANE AND SHARON ROAD; AND A CLASS I (OFF ROAD) BIKE PATH ON BEAR STREET BETWEEN SEGERSTROM AVENUE AND MACARTHUR BOULEVARD e- 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 Adopt a resolution approving General Plan Amendment No 2011 -01. PLANNING COMMISSION ACTION On February 28, 2011, the Planning Commission recommended that the City Council adopt a resolution approving General Plan Amendment No. 2011 -01 by a vote of 7:0 to amend the Santa Ana General Plan Circulation Element Bikeway Master Plan to allow for additional travel paths for bicycle users. The Planning Commission made no changes to the modifications outlined in the attached staff report (Exhibit A). FISCAL IMPACT There is no fiscal impact associated with this action. J' M. Trevino Executive Director Planning & Building Agency MGM:rb mm\p1ancomm \bike \gpa11 -01 BikeMstrPln.cc Exhibit: A. Planning Commission Staff Report 75B -1 75B -2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: FEBRUARY 28, 2011 TITLE: PUBLIC HEARING — GENERAL PLAN AMENDMENT NO. _2011 -01 TO CIRCULATION ELEMENT BIKEWAY MASTER PLAN TO INCLUDE A CLASS II (ON ROAD) BIKE LANE ON MEMORY LANE BETWEEN BRISTOL STREET AND FLOWER STREET, AND FLOWER STREET BETWEEN MEMORY LANE AND SHARON ROAD; AND A CLASS I (OFF ROAD) BIKE PATH ON BEAR STREET BETWEEN SEGERSTROM AVENUE AND MACARTHUR BOULEVARD Prepared by Melanie G. McCann xecutive Director RECD MENDED ACTION PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED • Applicants Request • Staff Recommendation CONTINUED TO Planning Manag r Recommend that the Planning Commission recommend that the City Council adopt a resolution approving General Plan Amendment No. 2011 -01. Request of Applicant The City of Santa Ana is initiating a request to amend the Santa Ana General Plan Circulation Element. Specifically, the proposal is to make minor revisions to the Circulation Element Bikeway Master Plan to allow for additional travel paths for bicycle users. Protect Description The Circulation Element of the General Plan identifies the long range plans for various modes of transportation throughout the city including automobiles, transit, bicycles and pedestrians. The Bikeway Master Plan component of the Circulation Element identifies the location of two types of bikeways to serve the recreational and commuter needs within the City of Santa Ana, including: Class I Bikeway — Provides for bicycle travel on a right -of -way completely separate from the street. Class II Bikeway — Provides a striped lane for a one -way travel within the street right -of -way. The revision to the Bikeway Master Plan proposed by this general plan amendment is shown in Exhibit 1, and described below: North -South • Add Flower Street (Memory Lane to Fisher Park) Class II • Add Bear Street (Segerstrom Avenue to MacArthur Boulevard) Class I 2 Exhibit A GPA No. 2011 -01 February 28, 2011 Page 2 • Remove Flood Control Channel (Segerstrom Avenue to its south edge) Class I East West • Add Memory Lane (Bristol Street to Flower Street) Class II Project Background A Bicycle Master Plan was first incorporated into Santa Ana's General Plan Circulation Element in the early 1980s. Ten years later, the City initiated a citywide comprehensive bicycle facilities study and formed an advisory committee of interagency City staff and local stakeholders to reevaluate the Bikeway Master Plan. As a result of this effort, in 1995 an additional 4.2 linear miles of off -road (Class 1) and over 30 linear miles of on -road (Class II) bikeways were included in a Circulation Element Bikeway Master Plan update. Since that time, cycling has increasingly become a valued mode of transportation with the potential to reduce roadway congestion, promote health, and improve air quality. Given the importance of the bikeway system in Santa Ana's transportation and sustainability planning efforts, a City interagency staff team is pursuing grant funds to reevaluate and update the current Bikeway Master Plan. With funding secured, the City would undertake a comprehensive update of the Circulation Element to incorporate "complete street" policies including an updated Bikeway Master Plan and the Santa Ana GO Local Fixed Guideway transit plan. The purpose of this minor amendment to the Bikeway Master Plan is to enable the City to pursue grant funding currently being offered through the State of California Bicycle Transportations Account (BTA) that can pay for new capital improvements, such as the addition of these bike lanes. Project Analysis The bikeway network currently identified in the General Plan Circulation Element envisions over 83 linear miles of on -road bike lanes and off -road bike paths for Santa Ana's future. The proposed amendment will formally add approximately 1.1 linear miles of bikeways, with 0.61 linear miles on- road bike lanes proposed on segments of Memory Lane and Flower Street, and 0.49 linear miles of bike path along Bear Street. These proposed Bikeway Master Plan revisions will preserve and provide opportunities for bicycle travel linkages between residential neighborhoods, public parks, commercial services, and other destination points. Further, General Plan Amendment No. 2011 -01 is consistent with the General Plan goals to promote sustainability, quality development, and encourage a variety of transportation alternatives to serve the Santa Ana community. Public Notification The proposed bikeway routes are located adjacent to the following Neighborhood Associations: Fischer Park, Morrison /Eldridge and Bristol /Memory Coalition. Each of the presidents listed for these Neighborhood Associations was notified 10 days prior to this public hearing. In addition, City GPA No. 2011 -01 February 28, 2011 Page 3 staff has called each president to ensure that they were notified of the project and to see if there were any areas of concern. A notice was published in the Orange County Reporter advertising this public hearing and notices were mailed to those requesting notification of general plan amendment proposals, such as Santa Ana Unified School District and California Department of Transportation, District 12. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. CEQA Compliance In accordance with the California Environmental Quality Act, the proposed project is exempt from further review pursuant to Section 15304(h), as the project proposes the minor alteration of the condition of land by the creation of a bicycle lane in existing right of way. Environmental Review No. 2011 -11 will be filed for this project. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission recommend that the City Council adopt a resolution approving General Plan Amendment No. 2011- 01. Melanie G. McCann, AICP Associate Planner MGM:jm mmlp1anccmmlbikeJ\PA11 -01 BikeMstrPhpc Attachment: Exhibit 1 — Proposed revision to the Bikeway Master Plan 75B -5 Orange % Garden Grove Memory, tLn.4 Fairhaven Santiago reek Santa Clara Ave. r Westminster -7 1 7th 1. Ave. St. ashington I Civic Dr. r. Fifth St. 4 A Val 4th St. Santa Ana Blvd. First St. Santa Ana Blvd.. Chestnut —aw- %0" —Ill, . a�A Mc Fad den Ave.. 0 Col. 0 IJ Se rstrorn 41111111, dog Alton Alton Mac Arthur Bvld. Sunflower Irvine North h A Costa Mesa Exisiting: Pr000sed: - -- Class I Bike Path Class I Bike Path (Add) Class 11 Bike Lane t t t r t Class 11 Bike Lane (Add) Routes to Adjacent 0 Class I Bike Path (Remove) Cities Railroad 0 0.6 1.2 Miles Santa Ana River Rest Stop g. GPA 2011 -01 GENERAL PLAN CIRCULATION ELEMENT BIKEWAY MASTER PLAN P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT I ROH - 03/21/11 RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE SANTA ANA GENERAL PLAN CIRCULATION ELEMENT BIKEWAY MASTER PLAN (GPA NO. 2011 -01) 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. General Plan Amendment No. 2011 -01 has been initiated by the City of Santa Ana to amend the General Plan Circulation Element Bikeway Master Plan to allow a class II (on road) bike lane on Memory Lane between Bristol Street and Flower Street, and Flower Street between Memory Lane and Fisher Park, and a Class I (off road) bike path on Bear Street between Segerstrom Avenue and MacArthur Boulevard. B. On February 28, 2011, the Planning Commission held a duly noticed public hearing and voted to recommend that the City Council adopt a resolution approving General Plan Amendment No. 2011 -01. C. On March 21, 2011, the City Council of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral. D. The Council finds that General Plan Amendment No. 2011 -01 is consistent with the General Plan, including, but not limited to, its policies and goals to promote sustainability, quality development, and encourage a variety of transportation alternatives to serve the Santa Ana community. E. The Council finds that the City's general plan is designed, as it must be, to accommodate a wide range of competing interests — including those of developers, neighborhoods and homeowners, prospective homebuyers, environmentalists, current and prospective business owners, jobseekers, taxpayers, and providers and recipients of all types of city - provided services — and to present a clear and comprehensive set of principles to guide development decisions. The City's general plan sets forth these guiding principles. Once in place, it is the province of this Council to examine the specifics of a proposed project to determine whether it would be in harmony with the policies stated in the general plan. Resolution No. 2011 -XXX Page 1 of 3 75B -7 F. The City Council has weighed and balanced the general plan's policies, both new and old, and has determined that based upon this balancing that General Plan Amendment No. 2011 -01 is consistent with the purpose of the general plan. G. In accordance with the California Environmental Quality Act, the proposed project is exempt from further review pursuant to Section 15304(h), as the project proposes the minor alteration of the condition of land by the creation of a bicycle lane in existing right of way. Environmental Review No. 2011 -11 will be filed for this project. Section 2. The City Council hereby approves General Plan Amendment No. 2011 -01. The amendments to the Circulation Element are attached hereto as Exhibit A and incorporated herein 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 March 21, 2011, and exhibits attached thereto, and the public testimony written and oral, all of which are incorporated herein by this reference. ADOPTED this day of , 2011. APPROVED AS TO FORM: Joseph Straka, City Attorney in Ryan O. Hodge Assistant City Attorney Resolution No. 2011 -XXX Page 2 of 3 Miguel A. Pulido Mayor 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 -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 3 of 3 75B -10 City of Santa Ana General Plan Circulation Element 1998 City of Santa Ana Planning Division u Adopted February 2, 1998 Exhibit A (Reformatted January 2010) This document includes revisions to the Circulation Element adopted by Santa Ana City Council March 21, 2011 (GPA 2011 -01), July 6, 2004 (GPA 2004 -06) and as passed by the voters of Santa Ana April 5, 2005 (GPA 2004 -01). 75B -11 CIRCULATION ELEMENT Exhibit 2 Bikeway Master Plan Garden Grove Weshninster _�!.� "� Ave Fifth St. _. First St. 1 1 Mc Fadden Ave. ��J 1 a' o v � z tea`! 5 . Segentrom r —d Alton r o 3 N 4 Costa Mesa - -- Class I Bike Path Class II Bike Lane Routes to Adjacent Cities - r t Railroad Santa Ana River Rest Stop CITY OF SANTA ANA GENERAL PLAN 75B -12 Orange 17th St. Fd P �i- Pq 4P Irvine North A 0 0.6 1.2 Miles z 13 REQUEST FOR COUNCIL/ AGENCY ACTION MEETING DATE: MARCH 21, 2011 TITLE: JOINT PUBLIC HEARING — RESOLUTIONS AND DISPOSITION AND DEVELOPMENT AGREEMENT WITH HABITAT FOR HUMANITY, INC. CITY MANAGER EXECUTI DIRECTOR RECOMMENDED ACTION CITY COUNCIL CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution making certain findings with respect to the consideration to be received by the Community Redevelopment Agency pursuant to a Disposition and Development Agreement between the Community Redevelopment Agency and Habitat for Humanity of Orange County, Inc., for the sale of certain real property in the City of Santa Ana and approving the sale of said real property upon the terms and conditions contained in that Agreement. COMMUNITY REDEVELOPMENT AGENCY Adopt a resolution approving a Disposition and Development Agreement between the Community Redevelopment Agency and Habitat for Humanity of Orange County, Inc. for the development of affordable, 17 single family homes at 719 and 812 North Concord, 1314 Eastwood, 4809 West Edinger, 4010, 4018, 4030, 4106 and 4110 West McFadden, 1029 McLean, 1114 and 1121 South Cypress, and 717 East Third. 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 adopting the City Council and Community Redevelopment Agency resolutions. Joint Public Hearing - DDA and Resolutions March 21, 2011 Page 2 DISCUSSION A key objective of the Redevelopment Agency (Agency) is to expand and preserve affordable housing. Staff was directed in December 2009 to negotiate a Disposition and Development Agreement (DDA) with the developers resulting from a Request for Qualifications for both single family and multi - family residential units on properties owned by the Agency. Habitat for Humanity of Orange County, Inc. (Habitat) was selected as developer for the single - family housing parcels. Habitat was created for the purpose of constructing and selling new homes to low and moderate income families. Their strength and experience over the past 21 years has been in the design and development of small, irregular, scattered sites for the construction of single family dwellings. Negotiations have been concluded and we are prepared to move forward with a DDA. Under the proposed DDA, the Agency will convey properties in three phases. A typical site plan and elevations for the various sites is attached as Exhibit 1. In accordance with redevelopment law, a Summary of Sale has been prepared by Keyser Marston Associates, which outlines in detail the financial terms of the proposed transaction. A summary of the terms and conditions contained in the proposed DDA are as follows: • Developer will construct a total of 17 single family homes: o 9 three bedrooms and 8 four bedrooms o 7 low- income (80% Area Median Income- AMI) homes o 10 moderate income(120% AMI) homes • Construction will be accomplished in three phases; • Conveyance of Agency parcels at no cost; • Agency will loan an amount not to exceed $1,615,513, (includes planning, transportation and school fees), which will be repaid in the form of 45 year affordability covenants ; • Agency to provide a Developer fee in the amount of $50,000 per affordable unit at time of sale to qualified home buyer; • Affordability covenants will run with land for 45 years. The following identifies the size of the homes and level of affordability: �:111I Joint Public Hearing - DDA and Resolutions March 21, 2011 Page 3 Address Type of Unit No. of Units No. Beds AMI 3 4 Low Mod 719 N. Concord Single Family 2 2 $7,327,313 2 812 N. Concord Single Family 1 1 1 1314 Eastwood Single Family 1 1 1 4809 W. Edinger Single Family 1 1 1 4010, 4018, 4030, 4106 and 4110 W. McFadden Att. Single Family 7 3 3 4 3 1029 McLean Single Family 1 1 1 1114 S. Cypress Single Family 2 1 1 1 1 1121 S. Cypress Single Family 1 1 1 717 E. To Single Family 1 1 1 Totals 17 9 8 7 10 Habitat agrees to construct all single family homes including landscaped front and rear yards. Each of the homes will be sold to low- and moderate income households at an affordable price ranging from approximately $166,000 to $385,000 to income - qualified households and will be restricted for a period of at least forty -five years. The homes will consist of 3 and 4 bedrooms, 1 '/2 to 2 '/2 bathrooms and range in size from approximately 1,300 square feet to 1,600 square feet. Homes will be one or two -story with 2 -car garages. All homes will provide sustainable amenities such as water conserving plumbing fixtures, tank less water heaters, on- demand hot water system, drought- resistant landscaping and high efficiency electrical fixtures. Sources Habitat Funding Sources $2,299,749 Land Value $1,834,000 Tax - Increment $ 1,615,513 Total $7,327,313 Uses Land Value $1,834,000 Construction $ 3,544,115 Soft Costs $ 835,925 Developer Fee & Overhead $ 850,000 Financing Costs $ 263,273 Total $7,327,313 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. �;117'Asa Joint Public Hearing - DDA and Resolutions March 21, 2011 Page 4 ENVIRONMENTAL COMPLIANCE In accordance with the California Environmental Quality Act, the proposed project is exempt from further review. FISCAL IMPACT Funds are available in the Tax Increment Housing Set -Aside account (no. 50718830 - 66220). Shelly La ry-Bayle Housing Manager Community Development Agency NTE /SLB /mlr Exhibits: 1. Map 2. Council Resolution 3. CRA Resolution 4. DDA APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency X961 j M a LA o�o�no�num DYER RD r= y ALTON AV. ALTON AV. ■ ■ MACARTHUR BL. SUNFLOWER AV. 405 N Exhibit 1 ' ■ �' FAIRHAVEN AV, o 7 22 J W TRABK AV. p ? SANTA CLARA AV. i 17TH ST. ■ WASHINGTON AV. ■ 5 y CIVIC CE ER DR. z 5TH ST. STH ST. . ' SANTA ANA RL. 4TH ST. 1ST ST, • m � t m _ MCFADDEN m AV, ti m � �■ 0 MCFADDENAV. ur r P n a EDINGER AV, o w ¢ o � a ti: z w 3 ST. ANDR PL, z a (WARNER AV. P' o�o�no�num DYER RD r= y ALTON AV. ALTON AV. ■ ■ MACARTHUR BL. SUNFLOWER AV. 405 N Exhibit 1 �L;llyx,Mo, RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF SANTA ANA MAKING CERTAIN FINDINGS WITH RESPECT TO THE CONSIDERATION TO BE RECEIVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA PURSUANT TO A DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE AGENCY AND HABITAT FOR HUMANITY OF ORANGE COUNTY, INC. FOR THE SALE OF CERTAIN REAL PROPERTY, AND APPROVING THE SALE OF SAID REAL PROPERTY UPON THE TERMS AND CONDITIONS CONTAINED IN THAT AGREEMENT 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 Redevelopment Projects, including strengthening of public - private partnerships to provide more affordable housing, and particularly to provide decent, safe, sanitary, and affordable housing to the lower income citizens of the City of Santa Ana. B. In order to implement the Redevelopment Plan, the Agency proposes to sell said real property located at 719 and 812 N. Concord, 1314 Eastwood, 4809 W. Edinger, 4010, 4018, 4030, 4106, and 4110 W. McFadden, 1029 McLean, 1114 and 1121 S. Cypress, and 717 E. Third Street (the Properties) pursuant to the terms and provisions of a Disposition and Development Agreement (hereinafter referred to as the "Agreement ") between the Agency and Habitat for Humanity of Orange County, Inc., a non - profit, public benefit corporation ( "Developer"), which is on file in the office of the Executive Director of the Agency. C. Developer proposes to construct and sell seventeen (17) single family homes to low and moderate income qualified households. The term EXHIBIT 2 96117 of affordability on each of the homes will be forty -five (45) years. D. The consideration for the Properties is not less than the fair market value of the land at the use and with the long term affordability covenants and conditions and development costs authorized by the sale. E. The Agreement contains all of the provisions, terms, conditions and obligations required by the state and local laws, as well as long -term affordability covenants benefiting the Agency. F. Developer possesses the qualifications and financial resources necessary to acquire and insure development of the Properties as a three single - family homes to be sold to qualified low income families in accordance with the purpose and objectives of the Redevelopment and Implementation Plan. G. In accordance with the California Environmental Quality Act, the proposed project is exempt from further review. H. Pursuant to the provisions of the California Redevelopment Law, the Agency and the City Council have held a duly noticed joint public hearing on the proposed sale of the Properties in compliance with Health and Safety Code section 33433. The City Council has considered all evidence submitted, both oral and written, as fully advised prior to adoption of this Resolution. Section 2. The City Council has considered all terms and conditions of the proposed sale to Developer and hereby finds and determines that the sale and development of the Properties pursuant to the Agreement is in the best interest of the City of Santa Ana and the health, safety and welfare of its residents, and is in accord with the public purpose and provisions of the applicable state and local laws. Section 3. The City Council hereby finds and determines that the consideration for the sale of the Properties pursuant to the Disposition and Development Agreement is not less than the fair market value of the Properties determined in accordance with the covenants and conditions governing the sale. Section 4. The sale of the Properties by the Agency to Developer upon the terms and conditions contained in the Agreement is hereby approved. Section 5. The Clerk of the Council shall attest to and certify the vote adopting this Resolution. 2 �96117XOO� ADOPTED this day of , 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: 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 , 2011. Date: Clerk of Council City of Santa Ana �,1j J �:ll1_dl--j RESOLUTION NO. 2011- A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE AGENCY AND HABITAT FOR HUMANITY OF ORANGE COUNTY, INC. BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, AS FOLLOWS: Section 1: The Board of the Community Redevelopment Agency 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 Redevelopment Project Areas (the "Redevelopment Plan "), including strengthening of public - private partnerships to provide more affordable housing, and particularly to provide decent, safe, sanitary, and affordable housing to the lower income citizens of the City of Santa Ana. B. In order to implement the Redevelopment Plan, the Agency has agreed, subject to the approval of the City Council, to sell certain real property located at 719 and 812 N. Concord, 1314 Eastwood, 4809 W. Edinger, 4010, 4018, 4030, 4106, and 4110 W. McFadden, 1029 McLean, 1114 and 1121 S. Cypress, and 717 E. Third Street (the Properties) pursuant to the terms and provisions of a Disposition and Development Agreement (hereinafter referred to as the "Agreement ") between the Agency and Habitat for Humanity of Orange County, Inc., a non - profit, public benefit corporation ( "Developer"), which is on file in the office of the Executive Director of the Agency, in which said real property, is described. C. Developer proposes to construct and sell seventeen (17) single family homes to low and moderate income qualified households. The term of affordability on each of the homes will be for forty -five (45) years. D. The Agreement contains all of the provisions, terms, conditions and obligations required by the state and local laws. EXHIBIT 3 1 fi_ E. Developer possesses the qualifications and financial resources necessary to acquire and insure development of the Properties in accordance with the purpose and objectives of the Redevelopment Plan. F. In accordance with the California Environmental Quality Act, the proposed project is exempt from further review. G. Pursuant to the provisions of the California Redevelopment Law, the Agency and the City Council have held a duly noticed joint public hearing on the proposed sale of the Properties pursuant to the Agreement. The Agency Board has considered all evidence submitted, both oral and written, as advised prior to adoption of this Resolution. Section 2. The Disposition and Development Agreement is hereby approved, and the Executive Director of the Agency, or his /her designee, is hereby authorized to execute the Agreement, with such non - substantive changes as may be approved by Agency's General Counsel. 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 the Agreement on behalf of the Agency. 2 FAI ADOPTED this day of , 2011. Miguel A. Pulido Chair APPROVED AS TO FORM: General Counsel By: Lisa E. Storck Assistant General 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 of the City of Santa Ana 3 �:��1_d_E�? �;T j ' 2/9/2011 DISPOSITION AND DEVELOPMENT AGREEMENT (Phase VI) by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA and HABITAT FOR HUMANITY OF ORANGE COUNTY, INC., a California non - profit public benefit corporation Community Redevelopment Agency Resolution No. , 2011 EXHIBIT 4 DISPOSITION AND DEVELOPMENT AGREEMENT THIS DISPOSITION AND DEVELOPMENT AGREEMENT ( "Agreement ") is entered into on this day of , 2011, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate and politic ( "Agency "), and HABITAT FOR HUMANITY OF ORANGE COUNTY, INC., a non - profit public benefit corporation ( "Developer "). RECITALS The following recitals are a substantive part of this Agreement: A. In furtherance of the objectives of the California Community Redevelopment Law, the Agency desires to redevelop Agency -owned Sites located at: 717 E. Third Street, 719 N. Concord Street, 812 N. Concord Street, 1114 S. Cypress Avenue, 1121 Cypress Avenue, 1314 Eastwood Avenue, 4809 W. Edinger Avenue, 4010 & 4018 W. McFadden Avenue, 4106 W. McFadden Avenue, 4110 W. McFadden Avenue and 1029 McLean Drive within the City of Santa Ana, as more particularly described on Exhibit A and incorporated herein (the "Sites "). The Sites are all undeveloped vacant property. The Sites are depicted on the Site Map is attached hereto as Exhibit B. B. The Sites are currently owned by the Agency. C. The Agency and Developer desire by this Agreement for the Agency to convey the Sites, in three (3) Phases (each, a "Phase "), to the Developer and for the Developer to agree to construct the number of single - family homes as set forth in Section 301 with landscaped front yards on the Sites. Each of the single - family homes will be sold at an affordable price to income - qualified households and future sales of such single - family homes will be restricted to income - qualified households for a period of at least forty -five (45) years. D. The Agency shall convey each Site to Developer upon execution of the Grant Deed with Developer ( "Developer Grant Deed" - see Exhibit C attached hereto and incorporated herein). There will be an Agency Loan to Developer for development of each of the Sites and the Developer shall sign a Promissory Note ( "Developer Promissory Note " - see Exhibit D attached hereto and incorporated herein) for each Site and a deed of trust will be executed and recorded against each Site ( "Developer Deed of Trust" - see Exhibit E attached hereto and incorporated herein). E. The Agency's disposition of the Sites to the Developer, and the Developer's acquisition of the Sites and construction of the Improvements 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 state and local laws and requirements under which the redevelopment of the Project has been undertaken. EXHIBIT 4 F. 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, shall constitute the entire agreement between the Agency and Developer. NOW THEREFORE, the Agency and Developer hereby agree as follows: 100. DEFINITIONS "Affordable Housing Resale Restrictions "" means the document containing the covenants and restrictions pertaining to affordability of the Units for a term of at least forty-five (45) years running with the land, to be executed by the Agency and each Homebuyer and recorded against each of the Properties. The Affordable Housing Resale Restrictions, along with the legally required Notice, are attached hereto as Exhibit F and incorporated herein by this reference. "Affordable Housing Cost" means the maximum purchase price of an Affordable For - Sale Unit by a Low and Moderate Income Household pursuant to California Health and Safety Code Section 50052.5(b)(3) and 50052.5(b)(4). "Affordable Unit" means each of the Homes to be constructed and sold at an Affordable Housing Cost pursuant to this Agreement. "Agency" means the Community Redevelopment Agency of the City of Santa Ana, a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California, and any assignee of or successor to its rights, powers and responsibilities. "Agency's Conditions Precedent" means the conditions precedent to each Closing to the benefit of the Agency, as set forth in Section 205.1 hereof. "Agreement" means this Disposition and Development Agreement between the Agency and Developer. "Area Median Income" means the median income figures for Orange County adopted by the State of California pursuant to Health and Safety Code Section 50093, as amended from time to time. "City" means the City of Santa Ana, a charter city and municipal corporation. "Closing" means the close of escrow for the conveyance of the Sites in a Phase from the Agency to the Developer and shall occur at the time and on the day the Grand Deed is filed for record with the Orange County Recorder's Office. "Closing Date" means the day on which the Closing of a Phase occurs. "Condition of Title" is defined in Section 203 hereof. 2 EXHIBIT 4 �:111_d_VA "Conveyance" means the conveyance of the Sites in each Phase to Developer by recordation of the Grant Deeds from the Agency on the Closing Date. "Date of Agreement" is set forth in the first paragraph hereof. "Default" means the failure of a party to perform any action or covenant required by this Agreement within the time periods set forth herein following notice and opportunity to cure, as set forth in Section 501 hereof. "Design Development Drawings" means those plans and drawings to be submitted to the City for its approval, pursuant to Section 302 hereof. "Developer" means Habitat for Humanity of Orange County, Inc., a California non - profit public benefit corporation. "Developer Deed of Trust" means each Deed of Trust, signed by Developer, which shall be recorded as an encumbrance against each Site, as conveyed by Agency to Developer substantially in the form of Exhibit E hereto which is incorporated herein. "Developer Grant Deed" means the grant deed for the conveyance of each Site in a Phase from the Agency to the Developer, substantially in the form of Exhibit C hereto which is incorporated herein. "Developer Parties" is defined in Section 208.7. "Developer Promissory Note" means each Promissory Note signed by Developer in the amount of the Agency assistance for each Site substantially in the form of Exhibit D hereto which is incorporated herein. "Developer's Conditions Precedent" means the conditions precedent to each Closing to the benefit of the Developer, as set forth in Section 205.2. "Environmental Laws" means a 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) Article 9 or Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (vi) Section 311 of the Clean Water Act (33 U.S.C. section 1317), (vii) Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. section 6901, et seq. (42 U.S.C. section 6903, (viii) Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9601 et seq., or (ix) 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. EXHIBIT 4 A 61 "Escrow" is defined in Section 202 hereof. "Escrow Agent" is defined in Section 202 hereof. "Exceptions" is defined in Section 203 hereof. "Executive Director" means the Executive Director of the Agency, or her/his designee. "Family" means natural individuals, related or not, who live as a single household in a House. "Force Majeure" shall mean delays of performance by either parry hereunder due to war; insurrection; strikes; lockouts; labor disputes; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation including, but not limited to, litigation challenging the validity of this transaction or any element thereof (except condemnation); severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor, or supplies; acts of the other party; acts or failure to act of the City or any other public or governmental agency or entity (other than acts or failure to act on the part of the Agency or the City shall not excuse performance by the Agency); or any other cause beyond the control, or without the fault of the parry claiming an extension of time to perform; provided that notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause or event resulting in such delays. Any such extension shall be for the duration of the cause of the delay. "Governmental Requirements" means all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision with jurisdiction over property within the City, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the Agency, Developer or the Sites, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to 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 4 EXHIBIT 4 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 byphenyls, (viii) listed under Article 9 or Administrative Code, Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section 1317), (x) 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 (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. section 9601 et seq. " Homebuyer Documents" refers to the documents to be executed by the Homebuyer upon purchase of the affordable House as set forth in Section 403.4. "House" means the building and appurtenant structures located on a Parcel and designed and intended for use and occupancy as a residence by a single Family. "Household Size Appropriate for the Unit," for the purpose of determining Affordable Housing Cost only, means four persons for a three bedroom Affordable Unit and five persons for a four bedroom Affordable Unit. Household Size Appropriate for the Unit is not intended to constitute a limitation on the number of persons who may live in the Unit. "Improvements" means the improvements to be constructed by the Developer upon the Sites in a Phase, all more specifically defined herein and in the Scope of Development. "Lender" is defined in Section 311.2 hereof. "Low Income" and "Low Income Households" shall mean persons and families whose income does not exceed the qualifying limits for Low Income families in Orange County as established by the State of California pursuant to Health and Safety Code section 50079.5, as such qualifying limit is amended from time to time. "Moderate Income" or "Moderate Income Households" shall mean persons and families whose income does not exceed the qualifying limits for Moderate Income Households in Orange County as established by the State of California pursuant to Health and Safety Code section 50093, as such qualifying limit is amended from time to time. "Monthly Housing Costs" shall mean (i) one - twelfth of the annual cost of principal and interest payments on each loan secured by a mortgage on the Affordable Unit and loan insurance fees, if any, associated with such mortgages; (ii) one - twelfth of the annual cost of property taxes and assessments; (iii) one - twelfth of the annual cost of fire and casualty insurance covering replacement value of property improvements; (iv) one - twelfth of the annual cost of property maintenance and repairs; (v) one - twelfth of the annual cost of a reasonable allowance for utilities the County Utility Schedule as adopted by the Santa Ana Housing Authority (as amended from time to time), including garbage collection, sewer, water, gas, electricity, and other heating, cooking or refrigeration fuels, but not telephone service, and (vi) one - twelfth of annual homeowners association dues and assessments. "Mortgage" is defined in Section 311.2 hereof. 5 EXHIBIT 4 X0117 AKIC "Notice" shall mean notice in the form prescribed by Section 601 hereof. "Notice of Affordability" shall mean the document recorded against each of the Parcels pursuant to Section 33334.3(f)(3)(B) of the California Health & Safety Code as amended by AB 987, Chapter 690, Statutes of 2007 (herein, "Chapter 690 ") substantially in the form of Exhibit G hereto which is incorporated herein. "Outside Date" shall mean the last date a Closing of a Phase shall occur, as set forth in Section 202.4 hereof. "Parcel" shall mean a legal parcel of real property on which a House is constructed or to be constructed and which will be conveyed to a Program Participant along with the House. "Phase" means a group of Sites, and the Houses and other Improvements to be constructed thereon. The three (3) Phases are depicted on the Site Map attached hereto as Exhibit B and listed in the Legal Description of Sites. "Program Participant" (used interchangeably with "Homebuyer ") means the selected eligible person or Family who will be purchasing a House. Each Program Participant will be providing not less than five hundred (500) hours of sweat equity toward the development of their House, or any other improvements as may be designated by the Developer. Each Program Participant is to be selected by the Developer as more fully set forth in its Marketing Outreach and Sales Program. "Project" means with respect to each Phase, the predevelopment activities related to the Sites in such Phase, including the acquisition of the Sites by Developer, the construction of the number of Affordable Units assigned to such Phase, the sale thereof to qualified purchasers of the Affordable Units at an Affordable Housing Cost and any other activities undertaken in connection therewith. "Project Budget" means the budget for the project submitted and approved by the Agency, attached hereto and incorporated herein as Exhibit H. "Purchase Price" means, with respect to each Phase, the price to be paid by the Developer to the Agency in consideration for the conveyance of fee title to the Sites included in such Phase. "Release of Construction Covenants" means the document which evidences the Developer's satisfactory completion of the Improvements, as set forth in Section 310 hereof, in substantially the form of Exhibit I hereto which is incorporated herein. "Report" means the preliminary title report, as described in Section 203 hereof. "Schedule of Performance" means the Schedule of Performance attached hereto as Exhibit J and incorporated herein, setting out 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 6 EXHIBIT 4 x:111_ K and the Agency's Executive Director, and the Agency's 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. The Scope of Development is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Executive Director. "Sites" is defined in Recital A above. "Site Legal Description" means the legal description of each Site attached hereto as Exhibit A, and incorporated herein. "Site Map" means the map depicting the Sites which is attached hereto as Exhibit B. "Term of Affordability" shall be forty five (45) years. "Title Company" is defined in Section 204 hereof. "Title Policy" is defined in Section 204 hereof. 200. CONVEYANCE OF THE SITES 201. Purchase and Sale of Sites. The Agency currently holds fee title to the Sites. Subject to all of the terms and conditions of this Agreement, Agency shall transfer the Sites to Developer, and Developer shall develop the Sites from Agency, in three (3) Phases in exchange for the Developer's assumption of the obligations set forth herein with respect to such Phase. Upon conveyance of each Site, the Developer shall execute a Promissory Note ( "Developer Promissory Note ") for the amount of the Agency assistance ( "Agency Loan Amount ") along with a corresponding Deed of Trust ( "Developer Deed of Trust ") which shall be recorded against the Site. The Developer Deed of Trust shall be reconveyed upon sale of the House to a qualified purchaser and execution of the Homebuyer documents as set forth in section 403.4. 201.1 Conveyance of Sites in Phases. The Sites shall be separately conveyed in three separate Phases. The Sites are more specifically identified in the Legal Description of the Sites and depicted on the Site Map. The addresses contained in each Phase may be altered or changed with written approval of both parties. A. The street addresses and Agency Loan Amounts for the Sites in Phase 1 are: 1121 S. Cypress Street ($,124,937.09) 812 Concord ($174,936.99) 1314 Eastwood ($240,932.99). 7 EXHIBIT 4 Phase 2 are: Phase 3 are : B. The street addresses and Agency Loan Amounts for the Sites in 1114 Cypress ($363,069.99) 719 N. Concord ($349,873.99) 717 E. 3rd Street($ 345,540.99) C. The street addresses and Agency Loan Amountsfor the Sites in 4010 -4030 W. McFadden ($1,015,284.97) 4030 -4110 W. McFadden ($360,869.99) 1029 S. McLean ($165,932.99) 4809 W. Edinger Avenue ($308,132.99) 201.2 Neighborhood Input. Developer shall be responsible for providing the concept plans to the surrounding neighborhood groups /associations to be reviewed/discussed at neighborhood meetings in order to obtain neighborhood input regarding such concept plans. 201.3 Timing. The Conveyance of each of the three Phases of Sites shall comply with all of the provisions of this Article including, without limitation, the Escrow provisions set forth in Section 202 hereof, the title provisions set forth in Sections 203 and 204 hereof, and the Conditions Precedent set forth in Section 205 hereof. 201.4 Right of Entry. Agency agrees to grant Developer a Right of Entry for each of the Sites in order for Developer to perform its due diligence. 201.5 Subcontractors. Prior to Conveyance of each of the Phases of Sites, Developer shall provide Agency with a list of its proposed subcontractors for construction, marketing and sales with respect to such Phase. Subcontractors shall be licensed and in good standing with the State Contractor's Board. 202. Escrow. 202.1 Procedures. (a) Agency shall transfer to Developer the Phases at the times set forth in the Schedule of Performance attached as Exhibit J hereto, subject to the satisfaction of all the conditions precedent to Closing. (b) The Agency agrees to open escrow for each Phase of the sale of the Sites to the Developer with First American Title Insurance Company, or such other escrow company mutually agreed upon by the parties (the "Escrow Agent ") at a time sufficient to satisfy Developer's obligation set forth in Section 202.1(a) above. This Agreement and Escrow Agent's Standard Form Escrow Instructions shall constitute the joint escrow instructions of the 8 EXHIBIT 4 Agency and the Developer and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of each escrow. (b) The Agency's Executive Director and the Developer shall provide such additional escrow instructions as shall be necessary and consistent with this Agreement. The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section in writing, delivered to the Agency and within five (5) days after delivery of Agreement, shall carry out its duties as Escrow Agent hereunder. (c) After delivery to the Escrow Agent by the Agency of a deed for each of the Sites in a Phase, and upon close of escrow of that Phase, the Escrow Agent shall record such deeds in accordance with these escrow instructions, provided that the title to the Sites can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix, and cancel any transfer stamps required by law and pay any transfer tax required by law. Any insurance policies relating to such property shall not be transferred to Developer by Agency. (d) The Agency and the Developer shall deliver to the Escrow Agent all documents necessary for the conveyance of title to the Sites in each Phase in conformity with, within the times, and in the manner provided in Agreement. 202.2 Costs of Conveyance. With regard to the conveyance of title to the Sites in each Phase to Developer: (1) The Developer shall pay the following fees, charges and costs: (a) Developer's share of the premium for any title insurance policies as set forth in Section 205 of this Agreement; (b) One -half (1/2) of escrow fees and recording fees; (c) One -half (1/2) of notary fees. (2) The Agency shall pay all other fees, charges and costs, including without limitation: (a) Costs necessary to place title in the condition required by the provisions of this Agreement ; (b) Ad valorem taxes, if any, upon the property conveyed for any time prior to conveyance of title; (c) Any federal, state, county or city documentary stamps and transfer taxes; (d) The Agency's share of the premium for the Title Policy as set forth in Section 205 of this Agreement; 9 EXHIBIT 4 (e) One -half (1/2) of escrow fees and recording fees; and (f) One -half (1/2) of notary fees. 202.3 Escrow Instructions. This Agreement constitutes the joint escrow instructions of Developer and Agency, and Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The Parties hereto agree to execute and deliver such documents (in recordable form as required), pay or deposit such funds, do all such acts consistent with their respective obligations hereunder as may be reasonably necessary to close the Escrow for each Phase in the shortest possible time and in any event on or before the Outside Date for such Phase. All funds received in the Escrow shall be deposited with other escrow funds in a general escrow account(s) and may be transferred to any other such escrow trust account in any State or National Bank doing business in the State of California. All disbursements shall be made by check from such account. If in the opinion of Escrow Agent or either Party it is necessary or convenient in order to accomplish the Closing of a Phase, such Party may require that the Parties sign supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control. The Parties agree to execute such other and further documents as may be reasonably necessary, helpful or appropriate to effectuate the provisions of this Agreement, the Escrow Agent is instructed to release Agency's and Developer's escrow closing statements to both Parties. 202.4 Authority of Escrow Agent. With respect to the Closing of each Phase, Escrow Agent is authorized to, and shall: a. Pay and charge Agency for the premium of the Title Policy and any amount necessary to place title in the condition necessary to satisfy Section 203 of this Agreement. b. Pay and charge Developer and Agency for their respective shares of any escrow fees, charges, and costs payable under Section 202.1 of this Agreement. C. Pay and charge Developer for any endorsements to the Title Policy which are requested by the Developer. d. Disburse funds, and deliver and record the Grant Deeds when both the Developer's Conditions Precedent and the Agency's Conditions Precedent have been fulfilled or waived by Developer and Agency. e. Do such other actions as necessary, including obtaining the Title Policy, to fulfill its obligations under this Agreement. f. Within the discretion of Escrow Agent, direct Agency and Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act reasonably necessary to comply with the provisions of FIRPTA and any similar state act and regulation promulgated thereunder. Agency agrees to execute a Certificate of Non - Foreign Status by individual transferor and/or a Certification of Compliance with Real Estate Reporting 10 EXHIBIT 4 Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to be supplied by Escrow Agent. g. Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms including an IRS 1099 -S form, and be responsible for withholding taxes, if any such forms are provided for or required by law. 202.5 Closing. The Closing of each Phase of this transaction shall occur within ten (10) days of the parties' satisfaction of all Conditions Precedent to Closing as set forth in Section 205 hereof, and only after issuance of building permits and adequate approved proof of financing. The Closing of each Phase shall occur at the offices of Escrow Agent at a time and place reasonably agreed on by the parties 202.6 Termination. A. Termination by the Developer. In the event that: (i) The Developer is unable to obtain financing necessary for the construction of the Improvements, or (ii) The Agency is in default of the Agreement and has not cured or commenced to cure such default within the time period set forth herein. Then, subject to any applicable cure provisions contained in this Agreement, at the option of the Developer, thirty (30) days after written notice thereof is delivered to the Agency, all provisions of this Agreement regarding the future purchase of Phases shall terminate and be of no further force and effect. Thereafter, neither the Agency nor the Developer shall have any further rights against or liability to the other with respect to this Agreement and any Phase not previously purchased. B. Termination by the Agency. In the event that: (i) The Developer (or any successor in interest) assigns or attempts to assign this Agreement or any rights therein or in the improved parcels in violation of this Agreement; or (ii) The Developer fails to proceed with or suspends work on any Project; or (iii) The Developer does not submit certificates of insurance, construction plans, drawings and related documents as required by this Agreement, 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 (iv) The Developer does not satisfy the Agency's Conditions to the Conveyance of the corresponding Houses and corresponding Parcels by the time established therefor in the Schedule of Performance; or 1 I EXHIBIT 4 (v) The Developer is otherwise in default under this Agreement and has not cured or commenced to cure such default within the time period set forth herein. Then, at the option of the Agency, thirty (30) days after written notice thereof is delivered to the Developer, the provisions of this Agreement regarding the future Phases shall be terminated, and thereafter, neither party shall have any further rights against the other under this Agreement. 202.7 Closing Procedure. Escrow Agent shall close Escrow for each Phase of the Sites as follows: a. Record the Grant Deeds for the Sites with instructions for the Orange County Recorder's Office, California, to deliver the Grant Deeds after recordation to the Developer; b. Record the Deeds of Trust with instructions for the Recorder of Orange County, California to deliver the Deeds of Trust after recordation to the Agency; C. Instruct the Title Company to deliver the Title Policy for the Sites in the Phase to Developer and to deliver the Lender's Policy for the Sites in the Phase to the Agency; d. File any informational reports required by Internal Revenue Code Section 6045(e), as amended, and any other applicable requirements; and e. Deliver the Promissory Note to Agency; f. Deliver the FIRPTA Certificate, if any, to Developer; and g. Forward to both Developer and Agency a separate accounting of all funds received and disbursed for each party and copies of all executed and recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon. 203. Review of Title. Within the time set forth in the Schedule of Performance, the Agency shall cause First American Title Insurance Company or another title company mutually agreeable to both parties (the "Title Company "), to deliver to Developer a preliminary title report or reports, together with color plotted easements if reasonably available (collectively, the "Title Report ") with respect to the title, together with legible copies of the documents underlying the exceptions ( "Exceptions ") set forth in the Title Report. Developer shall have the right to reasonably approve or disapprove the Exceptions; provided, however, that Developer hereby approves the following Exceptions: a. The Redevelopment Plan, and b. The lien of any non - delinquent property taxes, special taxes and/or assessments (to be prorated as of the Closing Date); and, 12 EXHIBIT 4 the Deed of Trust d. Any and all routine easements of record. 204. Title Insurance. A. Owner's Policy. Concurrently with recordation of the Grant Deed(s) conveying title to each Sites in a Phase, there shall be issued to Developer an ALTA Owner's Policy of Title Insurance with Western Regional Exceptions (the "Title Policy "), together with such endorsements as are reasonably requested by the Developer, issued by First American Title Insurance Company ( "Title Company ") insuring that the title to the Sites in such Phase is vested in Developer in the condition required by Section 203 of this Agreement. The Title Company shall provide the Agency with a copy of the Title Policy. The Title Policy shall be for the amount of the fair market value of each Site in the Phase. The Agency agrees to remove on or before the Closing any deeds of trust or other monetary liens against the Sites. The Agency shall pay that portion of the premium for the Title Policy equal to the cost of the ALTA standard coverage title policy in the amount of the fair market value of the Sites. Any additional costs, including the cost of an ALTA extended coverage policy or any endorsements requested by the Developer, shall be borne by the Developer. B. Lender's Policy. Concurrently with recordation of the Deed(s) of Trust covering the Sites in a Phase, there shall be issued to Agency an ALTA Lender's Policy of Title Insurance with Western Regional Exceptions ( "Lender's Policy ") together with such endorsements as are reasonable requested by the Agency, used by the Title Company insuring the lien of Agency's Deed(s) of Trust subject only to such exceptions as Developer shall have approved pursuant to Section 203 of this Agreement. The Lender's Policy shall be for the amount of the Promissory Note delivered to Agency in connection with the purchase of the applicable Phase. 205. Conditions of Closing. The Closing of each Phase of the Sites is conditioned upon the satisfaction (or written waiver by the benefited Party or Parties in its or their sole and absolute discretion) of the following terms and conditions within the times designated below: 205.1 Agency's Conditions of Closing. Agency's obligation to proceed with the Closing of the sale of the Sites in each Phase is subject to the fulfillment or waiver by Agency of each and all of the conditions precedent (a) through (1), inclusive, described below ( "Agency's Conditions Precedent "), which are solely for the benefit of Agency, and which shall be fulfilled or waived by the time periods provided for herein: a. No Default. Prior to the Close of Escrow, Developer is not in default in any of its obligations under the terms of this Agreement and all representations and warranties of Developer contained herein shall be true and correct in all material respects. b. Execution of Documents. The Developer shall have executed the Promissory Note and Deed of Trust for each Site in the applicable Phase and executed any other documents required hereunder and delivered such documents into Escrow. 13 EXHIBIT 4 �0 117. ;1 C. Payment of Closing Costs. Prior to the Close of Escrow, Developer shall have paid all required costs of Closing into Escrow in accordance with Section 202 hereof. d. Design Approvals. The Developer shall have obtained approval by the Agency of the Design Development Drawings as set forth in Section 302 hereof. e. Land Use Approvals. The Developer shall have paid for and received all land use approvals, entitlements and permits required for the Improvements by the City or any other governmental agency affected by such construction work. f. Insurance. The Developer shall have provided proof of insurance as required by Section 306 hereof. g. Financing. The Agency shall have approved financing of the Improvements on the Sites in the applicable Phase as provided in Section 311.1 hereof, 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 have closed and funded or shall be ready to close and fund upon the Closing. h. No Litigation. No litigation shall be pending or threatened by any third parties which seek to enjoin the transactions contemplated herein. i. Representations and Warranties. All representations and warranties of Developer contained in this Agreement shall be true and correct as if made on and as of the Closing. j. 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. 205.2 Developer's Conditions of Closing. Developer's obligation to proceed with the purchase of the Sites in each Phase is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent (a) through (1), inclusive, described below ( "Developer's Conditions Precedent "), which are solely for the benefit of Developer, and which shall be fulfilled or waived by the time periods provided for herein (provided, however, that if the reason for the failure of any of the following conditions is due to a Developer Default, such failure shall not be deemed to constitute the failure of Developer's Conditions Precedent): a. No Default. Prior to the Close of Escrow, Agency is not in default in any of its obligations under the terms of this Agreement and all representations and warranties of Agency contained herein shall be true and correct in all material respects. b. Execution of Documents. The Agency shall have executed the Grant Deeds for the Sites in the Phase and any other documents required hereunder, and delivered such documents into Escrow. 14 EXHIBIT 4 C. Payment of Closing Costs. Prior to the Close of Escrow, Agency shall have deposited in Escrow funds necessary to pay all required costs of Closing for the applicable Phase into Escrow in accordance with Section 202 hereof. d. Financing. Developer shall have secured financing for the improvements on the Sites as provided in Section 311.1 hereof, 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 have closed and funded or shall be ready to close and fund upon the Closing. e. Review and Approval of Title. Developer shall have reviewed and approved the condition of title of the Sites in the applicable Phase, as provided in Section 203 hereof. f. Lender's Policy. The Title Company shall, upon payment of Title Company's regularly scheduled premium, have agreed to issue the Lender's Policy for the applicable Phase of the Sites upon the Close of Escrow, in accordance with Section 204 hereof. g. Condition of Sites. The Developer shall have approved the environmental, physical and soils condition of the applicable Site and shall not have elected to cancel Escrow and terminate this Agreement pursuant to Section 208 hereof, the Remediation of the applicable Site (if required pursuant to that Section) shall have been completed as provided therein, and Agency is prepared to deliver exclusive possession of the Sites in the applicable Phase to Developer at the Closing. h. Design Approvals. The Developer shall have obtained approval by the Agency of the Design Development Drawings as set forth in Section 302 hereof. i. Land Use Approvals. The Developer shall have paid for and received all land use approvals, entitlements and permits required for the Improvements by the City or any other governmental agency affected by such construction work. j. Financing. The Developer shall have obtained construction financing of the Improvements on the applicable Phase as provided in Section 311.1 hereof. k. No Litigation. No litigation shall be pending or threatened by any third parties which seek to enjoin the transactions contemplated herein. 1. Representations and Warranties. All representations and warranties of Agency contained in this Agreement shall be true and correct as if made on and as of the Closing. 205.3 Legal Parcel. It shall be a Condition Precedent to Closing of a Phase, which neither parry may waive, that all the Sites in such Phase shall be legal parcels in compliance with the Subdivision Map Act. 15 EXHIBIT 4 206. Representations and Warranties. 206.1 Agency Representations. Agency represents and warrants to Developer as follows: a. Authority. Agency is a public body, corporate and politic, existing pursuant to the California Community Redevelopment Law (California Health and Safety Code Section 33000), which has been authorized to transact business pursuant to action of the City. Agency has full right, power and lawful authority to grant, sell and convey the Sites as provided herein and the execution, performance and delivery of this Agreement by Agency has been fully authorized by all requisite actions on the part of Agency. b. FIRPTA. Agency is not a "foreign person" within the parameters of FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any similar sate statue, or that Agency has complied and will comply with all the requirements under FIRPTA or any similar state statute. C. 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. d. No Legal Proceedings. There are no claims, causes of action or other litigation or proceedings pending or, to the best knowledge of the Agency, threatened with respect to the ownership, operation or environmental condition of the Sites or any part thereof (including disputes with mortgagees, governmental authorities, utility companies, contractors, adjoining landowners or suppliers of goods and services). e. Notices. Agency has received no notices from any governmental agency of any known or suspected violation of any of the Environmental Laws with respect to the Sites in the applicable Phase or the known or suspected existence of any Hazardous Materials on any of the Sites in the applicable Phase. C Violations. To the best knowledge of the Agency, there are no violations of any health, safety, pollution, zoning or other laws, ordinances, rules or regulations with respect to the Sites, which have not heretofore been entirely corrected. In the event Agency has actual knowledge of any such violations, Agency shall (i) immediately provide Developer with copies of all documents evidencing such violation, and (ii) cure such violation prior to Closing except as expressly provided herein. Until the Closing, Agency shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 206.1 not to be true as of Closing, immediately give written notice of such fact or condition to Developer. Such exception(s) to a representation shall not be deemed a breach by Agency hereunder, but shall constitute an exception which Developer shall have a right to approve or disapprove is such exception would have an effect on the value of the Sites and/or ability to develop the Sites in the Phase. If Developer elects to close Escrow following disclosure of such information, Agency's representations and warranties contained herein shall be deemed to have been made as of the 16 EXHIBIT 4 �L:IITAM J Closing, subject to such exception(s). If, following the disclosure of such information, Developer elects to not close Escrow, then this Agreement and the Escrow shall automatically terminate with respect to the applicable Phase, and neither party shall have any further rights, obligations or liabilities hereunder with respect to such Phase. The representations and warranties set forth in this Section 206.1 shall survive the Closing. 206.2 Developer's Representations. Developer represents and warrants to Agency as follows: a. Authority. Developer is a duly organized non - profit corporation formed within and in good standing under the laws of the State of California. Developer has full right, power and lawful authority to purchase and accept the conveyance of the Sites and 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. b. No Conflict. To the best of Developer's knowledge, Developer'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 the Developer is a parry or by which it is bound. C. No Developer Bankruptcy. Developer is not the subject of a bankruptcy proceeding and there is no action, legal or administrative proceeding, pending, or to the Developer's best knowledge threatened, looking toward the dissolution or liquidation of the Developer. d. No Legal Proceedings. As of the date of this Agreement, there are no material legal proceedings pending or, to the Developer's best knowledge, there are no legal proceedings threatened, to which the Developer, or any of the members of the Developer non - profit corporation, is or may be made a party, or to which any of its property is or may become subject which could materially or adversely affect the ability of the Developer to carry out its obligations hereunder. To the extent 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, which could materially or adversely affect the ability of the Developer to carry out its obligations hereunder, Developer shall promptly notify the Agency in writing. e. Experience and Qualifications. Developer represents to the Agency that the Developer has the experience and qualifications necessary to perform as Developer pursuant to this Agreement. Until each Closing, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 206.2 not to be true as of the applicable Closing, 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 shall have a right to approve or disapprove if such exception would have an effect on the value and/or operation of the Sites. If Agency elects to 17 EXHIBIT 4 �L:llh'&]K close Escrow as to such Phase following disclosure of such information, Developer's representations and warranties contained herein shall be deemed to have been made as of the Closing, subject to such exception(s). If, following the disclosure of such information, Agency elects to not close Escrow, then this Agreement and the Escrow shall automatically terminate as to the applicable Phase, and neither party shall have any further rights, obligations or liabilities hereunder as to such Phase. The representations and warranties set forth in this Section 206.2 shall survive the Closing. 207. Studies and Reports. Prior to the Closing of each Phase, representatives of Developer shall have the right of access to all portions of the Sites in such Phase for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement, including the investigation of the environmental condition of the Sites pursuant to Section 208 hereof. Any preliminary work undertaken on the Sites by Developer prior to the Closing of such Phase shall be done at the sole expense of the Developer, and the Developer's execution of a right of entry agreement to be provided by the Agency. Any preliminary work shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. 208. Physical and Environmental Condition of the Sites. 208.1 As -Is Condition; Exceptions. Except as set forth in Section 206.1(e) and (f) this Section 208. 1, the Sites shall be conveyed to Developer in an "as is" physical and environmental condition, with no warranty, express or implied, by the Agency as to the condition of any existing improvements on the Sites, the soil, its geology, the presence of known or unknown faults or Hazardous Materials or toxic substances, and it shall be the sole responsibility of Developer at its expense to investigate and determine the physical and environmental conditions for the Improvements to be constructed and the proposed use of same. If the physical or environmental condition is not in all respects entirely suitable for the use or uses to which the Sites will be put, Developer may terminate this Agreement as provided in Section 208.2 hereof. If Developer approves the physical and environmental condition of the Sites and accepts the Conveyance of the Sites, then it shall be the sole responsibility and obligation of Developer to take such action as may be necessary to place the physical and environmental conditions of the Sites in a condition entirely suitable for its development, unless the Agency has breached its representations, warranties, or covenants set forth in Section 206.1(e). 208.2 Physical and Environmental Investigation and Testing of the Sites. Developer shall have the right, at its sole cost and expense, to engage its own environmental consultant (the "Environmental Consultant ") to make such investigations of the Sites as Developer deems necessary, including any additional Phase I and/or Phase II investigations of the Sites, and the Agency shall promptly be provided a copy of any reports and test results provided to Developer by the Environmental Consultant (collectively, the "Environmental Report "). Developer shall reasonably approve or disapprove of the physical and environmental condition of the Sites in each Phase within the time set forth in the Schedule of Performance. In the event that Developer reasonably disapproves of the physical or environmental condition of the Sites in a Phase, then Developer shall have the right, by written notice to Agency, to elect either (a) to terminate this Agreement with respect to the applicable Phase or (b) to continue this Agreement in effect as to such Phase, in which event the following terms and conditions of this Section 208.2 shall apply: Developer agrees to pay, in the event that the amount of monies 18 EXHIBIT 4 L:llh& -A reasonably necessary to remediate the Hazardous Materials pursuant to Governmental Regulations, and generally accepted procedure to cause the Sites to be in compliance with the Environmental Laws is not more than Fifty Thousand Dollars ($50,000.00). If the amount necessary to remediate the Hazardous Materials is greater than Fifty Thousand Dollars ($50,000.00) Agency agrees to pay any amount over and above such Fifty Thousand Dollar ($50,000) limit in order to remediate any of the Sites. 208.3 Agency Obligations. The Agency shall deliver the Sites in an "as is" condition, it being the responsibility of Developer to demolish and clear all above ground and underground structures, including without limitation, foundations, basements, abandoned utility lines and tanks and the like. 208.4 No Further Warranties as to Sites. Except as otherwise provided herein, the physical condition, possession or title of the Sites shall be delivered from Agency to Developer in an "as -is" condition, with no warranty expressed or implied by Agency, including without limitation, the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Sites for the development purposes intended hereunder. 208.5 Developer Precautions after Closing. Upon the Closing, the 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 Sites. 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. 208.6 Required Disclosures After Closing. After the Closing of a Phase, the Developer shall notify the Agency, and provide to the Agency a copy or copies, of all environmental permits, disclosures, applications, entitlements or inquiries relating to the Sites in such Phase which have been conveyed to the 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 Sites. In the event of a release of any Hazardous Materials into the environment, the Developer shall, as soon as possible after the release, furnish to the Agency a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release. Upon request, the Developer shall furnish to the Agency a copy or copies of any and all other environmental entitlements or inquiries relating to or affecting the Sites 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. 208.7 Developer Environmental Indemnity. Upon the Closing, Developer agrees to indemnify, defend and hold Agency harmless from and against any claim, action, suit, 19 EXHIBIT 4 �L:II1AMV 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 by Developer or by any individual or entity for which Developer bears the legal liability including, but not limited to, officers, agents, employees or contractors of Developer (collectively, the "Developer Parties ") of any Hazardous Materials in violation of Environmental Laws during the period of the Developer's ownership of the Sites, on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Sites by Developer or any of Developer Parties during the period of the Developer's ownership of the applicable Sites, or (ii) the violation, or alleged violation, by Developer or any of Developer Parties 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 Sites during the period of the Developer's ownership of the Sites. 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. 208.8 Agency Environmental Indemnity. Upon the Closing, Agency agrees to indemnify, defend and hold Developer and the Developer Parties harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' 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 on the Sites in each Phase during the period prior to the Closing of such Phase, on, under, in or about, or the transportation of any such Hazardous Materials to or from the Sites in a Phase, during the period prior to the Closing of such Phase; 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 Sites in a Phase during the period prior to the Closing of such Phase. 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 affect on the environment. 300. DEVELOPMENT OF THE SITES 301 A. Developer's Obligations. 301.1 Developer Responsibilities /Obligations. Developer shall be responsible for all necessary planning and zoning changes; preparation of plans; landscaping, including on- Site and off -site improvements; construction of all Improvements; and maintaining construction defect insurance policy(ies) for a period of ten (10) years after conveyance of each Affordable Unit to a qualified affordable household. 20 EXHIBIT 4 �L:ll1&v 301.2 Developer's Obligation to Construct Improvements. Subject to all of the other terms and conditions set forth in this Agreement, upon the purchase of a Phase, Developer shall develop or cause the development of the improvements on the Sites in such Phase in accordance with the Scope of Development, the City of Santa Ana's Municipal Code, and the plans, drawings and documents submitted by Developer and reasonably approved by the City as set forth herein. 301.3 Developer Fee. Subject to the terms and conditions of this Agreement, Agency shall disburse to Developer the Developer Fee, in an amount equal to Fifty Thousand ($50,000.00) per Affordable Unit payable to Developer upon close of escrow with a qualified Homebuyer. 301.4 Required Improvements. The Developer shall develop the Improvements in accordance with the Scope of Development and the plans, drawings and documents submitted by the Developer and approved by the City as set forth herein. The Improvements shall generally consist of the construction of the following: The proposed project consists of development of 17 single family dwelling units on 10 sites scattered throughout the city. The project will be built in 3 phases. The homes will be attached and will offer 3 and 4 bedrooms.. The homes will be sold to 7 low income and 10 moderate income home buyers. The sales prices will range from approximately $166,000 to $385,000. Address Type of Unit No. of Units No. Beds AMI 3 4 Low Mod 719 N. Concord Single Family 2 2 2 812 N. Concord Single Family 1 1 1 1314 Eastwood Single Family 1 1 1 4809 W. Edinger Single Family 1 1 1 4010 & 4030 W. McFadden Att. Single Family 5 2 3 4 1 4030 & 4110 W. McFadden Att. Single Family 2 1 1 2 1029 McLean Single Family 1 1 1 1114 S. Cypress Single Family 2 1 1 1 1 1121 S. Cypress Single Family 1 1 1 717 E. Ta Single Family 1 1 1 Totals 17 9 1 8 7 10 The homes shall consist of approximately 2 different plans consisting of 3 and 4 bedrooms, 1 '/2 to 2 '/2 bathrooms and ranging in size from 1,300 sq. ft to 1,600 sq. ft. All homes shall have 2 stories and a 2 -car garage. A number of the homes will have covered entry porches and all will have private yards with enclosure fencing or walls. 301 B. Agency's Obligations. Agency agrees to pay all fees related to the development of the Houses, including but not limited to: transportation fees, school district fees, and sanitation fees. 21 EXHIBIT 4 302. Design Review. 302.1 Developer Submissions. Before commencement of construction of the Improvements or other works of improvement upon the Sites in a Phase, and as a Condition Precedent pursuant to Section 205, and at or prior to the times set forth herein, the Developer shall submit to the City any plans and drawings (collectively, the "Design Development Drawings ") which may be required by the City with respect to any permits and 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 and grading permits for the Improvements in such Phase. Within thirty (30) days after the City's disapproval or conditional approval of such plans, the Developer shall revise the portions of such plans identified by the City as requiring revisions and resubmit the revised plans to the City. 302.1.1 Special Development Requirements. The Design Development Drawings shall, to the extent compatible with Section 403 [Affordable Housing] and applicable design requirements of the City of Santa Ana, incorporate design elements and building practices that will reduce the maintenance and utility costs of home ownership, 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 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. As provided herein, the Basic Concept and Schematic Drawings for the Project were submitted to and approved by the Agency concurrent with the Date of Agreement. The Basic Concept and Schematic Drawings generally depict all Improvements and include a 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 House to be developed. 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 Parcel. 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 Work Write -Up. In the event of any inconsistency between the Work Write -Up and the Basic Concept and Schematic Drawings, the approved Work Write -Up 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 22 EXHIBIT 4 �L:IIY'Asbl 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. 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 the plans prepared for the Project 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 provide the concept plans to the surrounding neighborhood, submit all Design Development Drawings, 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 and incorporated herein as Exhibit J. The Developer shall perform all of its obligations hereunder within the times established therefor 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 acquisition of the Sites and the planning, designing, developing and constructing all of the Improvements, preparation of the Sites and grading shall be borne solely by the Developer. 306. Insurance /Bond Requirements. 306. A Insurance. The Developer shall take out and maintain or shall cause its contractor to take out and maintain until the completion of construction pursuant to the terms of this Agreement, a commercial general liability policy in the amount of Two Million Dollars ($2,000,000) combined single limit policy, and a comprehensive automobile liability policy in the amount of One Million Dollars ($1,000,000), combined single limit, or such other policy limits as the Agency may approve at its discretion, including contractual liability, as shall protect the Developer, City and Agency from claims for such damages and which policy shall be issued by an "A -" rated insurance carrier. Such policy or policies be written on an occurrence form. The Developer shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that Developer and any contractor with whom it has contracted for the performance of work on the Sites or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. The Developer shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form approved by the Agency setting forth the general provisions of the insurance coverage. This countersigned certificate shall name the City and the Agency and their respective officers, agents, and employees as additionally insured parties under the policy, and the certificates shall be accompanied by a duly executed enforcement evidencing such additional insured status (the Agency's preferred Additional Insured Endorsement is attached hereto as Exhibit L). The certificate and 23 EXHIBIT 4 endorsement by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City and the Agency of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination. Coverage provided hereunder by the Developer shall be primary insurance and not be contributing with any insurance maintained by the Agency or City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of the City and the Agency. The required certificate shall be furnished by the Developer at the time set forth in the Schedule of Performance. 306.A.1 Builders Risk Insurance. The Developer shall take out and maintain Builders Risk Insurance coverage to cover the Improvements during the course of construction. Such insurance shall provide coverage on an all risk basis, including theft and vandalism, for accidental losses, damage or destruction of the property during construction. The limit of insurance shall be in the amount of the full value of the project. 306.13. Payment, Performance and Completion Bonds. In the event Developer hires a third party contractor to perform the construction of the Development, Developer shall have obtained payment, performance and completion bonds for off -site improvements as may be customarily required by the City, in an amount and from a surety company reasonably acceptable to the Executive Director. All bonds shall be issued by good and solvent sureties qualified to do business in California and shall have a rating of A or better. 307. Completion of Project. Developer shall commence and diligently proceed with each Project. In any event, Developer shall complete each Project not later than the date established therefor in the Schedule of Performance unless extended by agreement of Agency and Developer. 308. Rights of Access. For purposes of assuring compliance with this Agreement, representatives of the Agency shall have the right of access to the Sites, 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 Agency representatives comply with all safety rules. The Agency (or its representatives) shall, except in emergency situations, notify the Developer prior to exercising its right pursuant to this Section 308. Agency hereby agrees to indemnify, protect, defend and hold Developer, and all portions of the applicable Sites, free and harmless from and against any and all loss, cost, liability or expense (including reasonable attorneys' fees) caused by or arising from such entry by Agency or its representatives upon such Sites, and from all mechanic's materialmen's and other liens resulting from any such entry. 309. Compliance with Laws. The Developer shall carry out the design and construction of the Improvements in conformity with all applicable laws, including all applicable 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., and the Unruh Civil Rights Act, Civil Code Sections 51, et seq. 24 EXHIBIT 4 309.1. Prevailing Wage Requirements. Developer and its contractors and subcontractors shall comply with Labor Code Section 1720, et seq., and its implementing regulations, regarding the payment of prevailing wages (the "Prevailing Wage Law ") with regard to the construction of the Improvements and the development of the Sites, to the extent such sections are applicable to the construction of the Improvements and the development of the Sites. Developer shall be solely responsible for determining and effectuating compliance with the Prevailing Wage Law, and the Agency makes no representation as to the applicability or non - applicability of the Prevailing Wage Law to the Improvements or the Sites. 309.2 Taxes and Assessments. Following each Closing, the Developer shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Sites conveyed in such Closing, subject to the Developer's right to contest in good faith any such taxes. The Developer shall remove or have removed any levy or attachment made on any of the Sites conveyed in such Closing or any part of such Sites, or assure the satisfaction thereof within a reasonable time. The Developer shall not apply for or receive any exemption from the payment of property taxes or assessments on any interest in or to the Sites or the Improvements. 309.3 Liens and Stop Notices. The Developer shall not undertake any action which would permit a third party to place on the Sites 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. effect 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 I 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 parry then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in any of the Sites shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement except for those continuing covenants as set forth in Section 406 of this Agreement. 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 therefor, provide the Developer with a written statement of the reasons the Agency 25 EXHIBIT 4 refused or failed to furnish the Release of Construction Covenants. The statement shall also contain the Agency's position as to 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. As required herein and as an Agency Condition Precedent to each Closing of a Phase, Developer shall submit to Agency evidence that Developer has obtained sufficient equity capital (for example, a Letter of Credit) or has obtained firm and binding commitments for construction and permanent financing necessary to undertake the development of the Sites in such Phase and the construction of the Improvements in such Phase in accordance with this Agreement. Such evidence of financing shall include the following: (a) a copy of a legally binding, firm and enforceable loan commitment(s)/ Letter of Credit obtained by Developer from financial institutions unrelated to Developer for the mortgage loan or loans for financing to fund the construction, completion, 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 for such construction, and that such funds have been committed to such construction, and/or other documentation satisfactory to the Agency as evidence of other sources of capital sufficient to demonstrate that Developer has adequate funds to cover the difference between the total cost of the acquisition of the Sites, and construction and completion of the Improvements, less financing authorized by those loans set forth in subparagraph (a) above. The Agency Executive Director shall approve or disapprove such evidence of financing capacity or commitments within fifteen (15) days of receipt of a complete submission. Approval shall not be unreasonably withheld, delayed or conditioned. If the Agency Executive Director shall disapprove any such evidence of financing, he or she shall do so by written Notice to Developer stating the reasons for such disapproval. Upon receipt of the Agency Executive Director's disapproval of the proposed financing, Developer shall either promptly obtain and submit new evidence of financing to the Director or terminate this Agreement as provided in Section 503 hereof. The Agency Executive Director 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. If any portion of Developer's financing consists of secured third party construction loans, Developer shall close the approved construction financing at the Closing. 311.2 Conveyance for Financing. 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 ( "Lender "). The Developer may enter into a conveyance for financing after the completion of the 26 EXHIBIT 4 X961 j M 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 Sites to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. However, such Holder shall be bound at all times by the conditions, covenants and restrictions set forth in the Developer Grant Deed (Exhibit F to 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 shall 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 be 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 Sites (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 trust has not exercised its option to construct, the Agency shall have the right, but not the 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 27 EXHIBIT 4 �,T j . P curing such default. The Agency shall also be entitled to a lien upon the Sites 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 Lender and Holder. In the event that a Lender or Holder which has been approved pursuant to this Section 311 hereof 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. 400. COVENANTS AND RESTRICTIONS 401. Use in Accordance with Redevelopment Plan. The Developer covenants and agrees for itself, its successors, assigns, and every successor in interest to the Sites, that upon the Closing of a Phase and during construction and thereafter, until Developer's sale of the Improvements on the Sites in such Phase, the Developer shall devote the Sites in such Phase to the uses specified in the Redevelopment Plan and this Agreement for the periods of time specified therein. All uses conducted on the Sites in such Phase, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to the Redevelopment Plan and all applicable provisions of the Santa Ana Municipal Code. The foregoing covenants shall run with the land. 402. Reserved. 403. Affordable Housing. 403.1 Number of Units. Developer agrees to make available, restrict occupancy to, and sell single family Houses to be developed upon the Sites to "Low Income Households" and "Moderate Income Households" (as those terms are herein defined) at an Affordable Housing Cost (the "Affordable Units ") as set forth in Section 301. In addition, the Developer agrees to cooperate with the Agency in any subsidized loan program the Agency may in its sole discretion make available to Low Income or Moderate Income Household purchasers of some or all of the Affordable Units. 403.2 Selection of Buyers. The Developer shall provide the Agency with a copy of its Marketing Plan which shall set forth how the Developer plans to provide interested households with information about the Sites. The Developer shall be solely responsible for the selection of qualified purchasers of the Affordable Units. Developer shall ensure that there will be adequate homebuyer education with HUD approved pre- and post- purchase counseling. 403.2.1 Marketing, Outreach and Sales Plan. The goal of the Marketing, Outreach and Sales Plan ( "the Plan ") is to insure that the marketing of affordable for - sale housing be as broad and inclusive as possible in order to inform and attract as many prospective buyers as possible. The Plan and the associated applicant selection procedures will be targeted to purchasers regardless of race, color, religion, sex, disability status, familial status 28 EXHIBIT 4 foil . 7 or national origin. The Plan shall be provided to Agency by Developer, and is attached hereto as Exhibit M. Information shall also be provided on the Developer's website, City of Santa Ana websites, City cable channel, Workforce Investment Board, Santa Ana Business Alliance, Santa Ana Unified School District, Rancho Santiago Community College District, Community Development Resource Network Newsletter, households displaced by redevelopment projects in the City and through neighborhood associations. 403.3 Income of Buyers. Prior to the sale of any Affordable Unit to a purchaser, the Developer shall submit to the Agency a completed income computation and certification form from each purchaser of an Affordable Unit in the form which is provided by the Agency. Each purchaser shall certify, to the best of the purchaser's knowledge, that it is a Low Income Household or a Moderate Income Household, as applicable, and meets the eligibility requirements established for the Affordable Unit. The Developer shall obtain an income certification (copy of Income Certification Form attached hereto as Exhibit N) from the prospective purchaser of an Affordable Unit and shall certify that, to Developer's Actual Knowledge, the income of the prospective purchaser is truthfully set forth in the Income Certification Form. For purposes of such certification, the Developer shall verify the income certification of the prospective purchaser in one or more of the following methods reasonably acceptable to the Agency: (a) obtain two (2) paycheck stubs from the prospective purchaser's two (2) most recent pay period. (b) obtain a true copy of an income tax return from the prospective purchaser for the most recent tax year in which a return was filed. (c) obtain an income verification certification from the employer of the prospective purchaser. (d) obtain an income verification certification from the Social Security Administration and/or the California Department of Social Services if the prospective purchaser receives assistance from such agencies. (e) obtain an alternate form of income verification reasonably acceptable to the Agency, if none of the above forms of verification is available to the Developer. 403.4 Homebuyer Documents. At the closing of escrow for the purchase of each Affordable Unit, the Agency will require each Low Income Household and each Moderate Income Household purchasing such Unit to execute the following documents: a. the Affordable Housing Resale Restrictions (attached hereto as Exhibit F). The Affordable Housing Resale Restrictions shall permit sales of an Affordable Unit sold to a Low Income Household only to a qualified Low Income Household or of an Affordable Unit sold to a Moderate Income Household only to a qualified Moderate Income Household, in each case, at an Affordable Housing Cost. The Affordable Housing Resale Restrictions must be fully explained 29 EXHIBIT 4 to the Purchaser and the entire explanation and execution of said document must be videotaped by the Developer. A copy of said videotape shall be placed on a CD which shall be kept by the Developer and the Agency. b.the Notice of Affordability on Transfer of Property (which shall be for a term of at least forty -five (45) years which is attached hereto as Exhibit G); c. the Agency Promissory Note (attached hereto as Exhibit O ). The principal amount of the Agency Promissory Note shall be in an amount equal to the difference between the sales price of the Affordable Unit and the fair market value of such unit as if no restriction were placed thereon, as determined by the sales price of equivalent unrestricted units on the Sites at the time of such sale. If there are no equivalent unrestricted units on the Sites at the time of sale, the fair market value of the unit shall be determined by appraisal which is reasonably acceptable to the Agency; d. Agency Deed of Trust (attached hereto as Exhibit P); and, e. the Homebuyer Loan Agreement (attached hereto as Exhibit Q). 403.5 Affordable Housing Property Tax. Developer shall be responsible for applying to the County of Orange to request that the property tax be based on the restricted value with the affordability covenants that are recorded against each Affordable Unit. 403.6 Maintenance. The Affordability Restrictions on Transfer of Property and the Affordable Housing Agreement shall require each of the households to maintain their property in conformance with local and state requirements. 403.7 Reasonable Efforts to Sell Affordable Units. The Developer agrees to exercise reasonable efforts consistent with prudent business practices to sell all of the Houses developed on the Sites to owner- occupants as soon as practical following the completion of the construction. The Developer agrees that the Houses developed on the Sites shall not be sold to the Developer or any parry /employee related to the Developer. 404. Transfer to Homebuyer. Developer shall transfer each completed House to a qualified Homebuyer no later than one (1) year after Closing of the Phase in which such House in included. 405. Nondiscrimination Covenants. Developer covenants by and for itself and any successors in interest that, upon Developer's acquisition of the Sites and during the period of Developer's ownership thereof there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Sites, nor shall Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Sites. Developer shall refrain from restricting the rental, sale or lease of the Sites on the basis of race, color, religion, disability, sex, marital status, ancestry or national origin of any person. 30 EXHIBIT 4 �0 1 405.1 Required Clauses. 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 race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee 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, subtenants, sublessees or vendees in the land 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 race, color, creed, religion, disability, sex, marital status, national origin, or ancestry 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 race, color, creed, religion, disability, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee 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, subtenants, sublessees or vendees of the premises." 405.2 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. 31 EXHIBIT 4 ���� A i 406. Effect of Violation of the Terms and Provisions of this Agreement after Completion of Construction. The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its 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 and the covenants running with the land have been provided, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Sites or in each Project. The Agency 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 beneficiaries of this Agreement and covenants may be entitled. The covenants contained in this Agreement shall remain in effect as follows: 406.1 The environmental covenants set forth in Sections 208.5, 208.6 and 208.7 shall remain in effect in perpetuity. 406.2 The covenants pertaining to use of the Sites which are set forth in Section 401 shall remain in effect for the term of the Redevelopment Plan. 406.3 The covenants pertaining to the use of the Sites as affordable housing set forth in Section 403 shall remain in effect for a period of not less than forty-five (45) years from the date that the property is conveyed to a Low Income Household or a Moderate Income Household. 406.4 The covenants pertaining to maintenance of the Sites and all improvements thereon, as set forth in Section 404, shall remain in effect for the Term of Affordability. 406.5 The covenants against discrimination, as set forth in Section 405 shall remain in effect in perpetuity. 407. Monitoring. Throughout the Term of Affordability, Developer shall comply (and Developer shall endeavor to cause each Program Participant to comply) with Health and Safety Code Section 33418 and all applicable record keeping and monitoring requirements and each Program Participant shall annually complete and submit to Agency such information as is required by Agency in order to ensure continued compliance with the occupancy requirements contained herein. 500. DEFAULTS, TERMINATION AND REMEDIES 501. Default Remedies. Subject to the extensions of time set forth in Section 502 of this Agreement, failure by either party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and failure to cure as described hereafter, constitutes a "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 32 EXHIBIT 4 remedy with diligence. 502. 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 an 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 Courts of the County of Orange, State of California, or in the District of the United States District Court in which such county is located. 503. Termination by the Developer. In the event that the Developer is not in default under this Agreement and the Agency does not tender title to the Sites in a Phase pursuant to the Grant Deed in the manner and condition and by the date provided in this Agreement; or one or more of the Developer's Conditions Precedent to the Closing is not fulfilled on or before the time set forth in the Schedule of Performance and such failure is not caused by the Developer; or in the event of any default of the Agency prior to the Closing which is not cured within the time set forth in Section 601 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. From the date of the written notice of termination of this Agreement by the Developer to the Agency and thereafter this Agreement shall be deemed terminated as to the purchase of any Phases not already purchased and there shall be no further rights or obligations between the parties with respect to such future purchases, except that the parties may pursue any other remedies they may have hereunder, including, without limitation, the right of Developer to commence an action for monetary damages against Agency for all costs and expenses incurred by Developer in the investigation and acquisition of the Sites. Such termination shall not affect the obligations of Developer with respect to Sites purchased prior to the termination of this Agreement. 504. Termination by the Agency. In the event that the Agency is not in Default under this Agreement, Developer (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the Sites in violation of this Agreement; or one or more of the Agency's Conditions Precedent to the Closing is not fulfilled on or before the time set forth in the Schedule of Performance and such failure is not caused by the Agency or City; or the Developer is otherwise in default of this Agreement and fails to cure such default within the time set forth in Section 501 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 Sites, shall, at the option of the Agency, be terminated by notice from Agency to the Developer and thereafter this Agreement shall be deemed terminated as to the sale of any Phases not already transferred to Developer and there shall be no further rights or obligations between the parties with respect to such future transfers, except that the parties may pursue any other remedies they may have hereunder. Such termination shall not affect the obligations of Developer with respect to Sites purchased prior to the termination of this Agreement. 505. Re -entry and Revesting of Title in the Agency After the Closing and Prior to Completion of Construction. 33 EXHIBIT 4 ���� 'i i 61 505.1 The Agency has the right, at its election, to reenter and take possession of the Sites, with all improvements thereon, and terminate and revest in the Agency the estate conveyed to the Developer as provided in the Grant Deed. 505.2 The Grant Deed shall contain appropriate reference and provisions to give effect to the Agency's right under specified circumstances, to re -enter and take possession of the Sites, with all improvements thereon, and to terminate and revest in the Agency the estate conveyed to the Developer. In no event, however, shall the Agency have the right to re -enter and take possession of any portion of the Sites on which a completed House is located. Upon the revesting in the Agency of title to the Sites as provided in this Section 505, the Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the Sites as soon and in such manner as the Agency shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligation of making or completing the Improvements, or such Improvements in their stead as shall be satisfactory to the Agency and in accordance with the uses specified for such Sites or part thereof in the Redevelopment Plan. Upon such resale of the Sites, the net proceeds thereof after repayment of any mortgage or deed of trust encumbering the Sites which is permitted by this Agreement shall be applied: A. First, to reimburse the Agency, on its own behalf or on behalf of the City, all costs and expenses incurred by the Agency, excluding City and Agency staff costs, but specifically, including, but not limited to, any expenditures by the Agency or the City in connection with the recapture, management and resale of the Sites in the applicable Phase or part thereof (but less any income derived by the Agency from such Sites or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Sites or part thereof which the Developer has not paid (or, in the event that such Sites are exempt from taxation or assessment of such charges during the period of ownership thereof by the Agency, an amount, if paid, equal to such taxes, assessments, or charges as would have been payable if such Sites were not so exempt); any payments made or necessary to be made to discharge any encumbrance or liens existing on such Sites or part thereof at the time or revesting of title thereto in the Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligation, default or acts of the City, its successors or transferees; any expenditure made or obligation incurred with respect to the making or completion of the Improvements or any part thereof on such Sites, or part thereof, and any amounts otherwise owing the Agency, and in the event additional proceeds are thereafter available, then B. Second, to reimburse the Developer, its successor or transferee, up to the amount equal to the sum of (a) the costs incurred for the development of the Sites in the applicable Phase and for the Improvements existing on such Sites at the time of reentry and possession, less (b) any gains or income withdrawn or made by the Developer from such Sites or the Improvements thereon prior to the re -entry by Agency. C. Any balance remaining after such reimbursements shall be retained by the Agency as its property. The rights established in this Section 605 are not intended to be exclusive of any other right, power or remedy, but each and every such right, power, and remedy 34 EXHIBIT 4 shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity. These rights are to be interpreted in light of the fact that the Agency will have conveyed the Sites to the Developer for redevelopment purposes, particularly for development of for sale affordable housing, and not for speculation in undeveloped land. 506. Acceptance of Service of Process. In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director of the Agency or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the President of the Developer or in such other manner as may be provided by law. 507. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such right or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 508. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 509. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 600. GENERAL PROVISIONS 601. Notices, Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice ( "Notice ") which either party may desire to give to the other party under this Agreement must be in writing and may be given by any commercially acceptable means to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice. To Agency: Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza, M -37 Santa Ana, California 92780 Attention: Executive Director Tel.: (714) 667 -2240 Fax: (714) 667 -2225 To Developer: Habitat for Humanity of Orange County 2200 South Ritchey Santa Ana, California 92705 Attention: Mark Korando 35 EXHIBIT 4 Tel.: (714) 434 -6200 Fax: (714) 210 -0663 Any written notice, demand or communication shall be deemed received immediately if delivered by hand and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 602. Developer Indemnity. Developer shall indemnify, defend and hold harmless Agency, its officers, agents, employees and volunteers from and against any and all loss or damage, expenses, injuries, death to any person, damage to real or personal property, claim, demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceeding of any kind arising out of Developer's actions with respect to implementation of this Agreement, the sale of the Property by Agency to Developer, securing of financing, design development drawings, engineering, construction, reconstruction, structural integrity of the Houses to be built on the Sites, maintenance of the Sites, operation, and subsequent sale of the Houses on the Sites, including but not limited to: A. the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials, on, under, in or about, or the transportation of any such hazardous materials to or from, the Sites after the Closing Date; B. the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Sites which occurs after the Closing Date; C. latent material defects in construction; D. any construction defect; E. personal injury, including death, of the employees, agents, officers, and/or volunteers of Developer, Developer Parties, and/or any subcontractors, independent contractors, partners, and/or subsidiaries; F. property damage claims of the employees, agents, officers, and/or volunteers of Developer, Developer Parties, and/or any subcontractors, independent contractors, partners, and/or subsidiaries; G. delay in construction; H. personal injury, including death, of any third party; I. property damage claims of any third party; and J. the failure to make required real estate disclosures to subsequent buyers of homes on the Sites. 36 EXHIBIT 4 Developer's obligation to indemnify as set forth in this Agreement shall extend to loss or damage, expenses, injuries, death to any person, damage to real or personal property, claim, demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceedings of any kind that, are discovered or accrue, either before or after the termination of this Agreement. Notwithstanding the foregoing, Developer shall not be required to indemnify and hold harmless Agency or the City for liability attributable to the active negligence or intentional misconduct of Agency or the City or any of their boards, officers, employees, representatives or agents. 603. 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 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 parry; acts or failures to act of the City or any other public or governmental agency or entity (other than the acts or failures to act of the Agency which shall not excuse performance by the Agency). 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 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 Section 603. 604. Transfers of Interest in Sites or Agreement. 604.1 Prohibition. The qualifications and identity of the Developer are of particular concern to the Agency. It is because of those qualifications and identity that the Agency has entered into this Agreement with the Developer. For the period commencing upon the date of this Agreement and until the expiration of the use and operations covenants which are set forth in Section 401 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 Sites or the Improvements thereon without prior written approval of the Agency, 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 Sites or the Improvements will entitle the Agency to its right of re -entry and revesting as set forth in Section 505 hereof. 604.2 Permitted Transfers. Notwithstanding any other provision of this Agreement to the contrary, Agency approval of an assignment of this Agreement or conveyance 37 EXHIBIT 4 of the Sites 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 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 Sites 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 herein), including the grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of the Improvements. (d) Any sale of the Houses to owner - occupants, pursuant to Section 403 hereof. 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 of such assignment and satisfactory evidence that the assignee has assumed jointly with Developer the obligations of this Agreement. 604.3 Agency Consideration of Requested Transfer. The Agency agrees that it will not unreasonably withhold approval of a request made pursuant to this Section 604, provided the Developer delivers written notice to the Agency 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 604 and as reasonably determined by the Agency. The Agency 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 604 applies, which the Agency determines does not posses equal or better qualifications that the transferring Developer. An assignment and assumption agreement in form satisfactory to the Agency'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 604, the Agency shall either approve or disapprove such proposed assignment or shall respond in writing by stating what further information, if any, the Agency 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 such further information as may be reasonably requested. Upon an approved assignment made pursuant to this Section 604, 38 EXHIBIT 4 Developer shall be relieved of its obligations hereunder and Agency shall look to the assignee for performance of such obligations. 604.4 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. 604.5 Assignment by Agency. The Agency may assign or transfer any of its rights or obligations under this Agreement with the approval of the Developer, which approval shall not be unreasonably withheld; provided, however, that the Agency may assign or transfer any of its interests hereunder to the City at any time without the consent of the Developer. 605. Non - Liability of Officials and Employees of the Agency and the Developer. No member, official or employee of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any Default or breach by the Agency (or the City) or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Agreement. 606. Relationship between Agency and Developer. It is hereby acknowledged that the relationship between the Agency and the Developer is not that of a partnership or joint venture and that the Agency and the 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 hereto, the Agency shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Improvements. 607. Agency Approvals and Actions. The Agency shall maintain authority of this Agreement and the authority to implement this Agreement through the Agency Executive Director (or his duly authorized representative). The Agency Executive Director shall have the authority to make approvals, sign sales and escrow documents, 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 Sites, 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. Notwithstanding the foregoing, Developer shall be permitted to rely upon the actions and approvals of the Agency Executive Director and shall not be expected to inquire into whether the Agency Executive Director has exceeded her /his authority. All other material and/or substantial interpretations, waivers, or amendments shall require the consideration, action and written consent of the Agency Board. 608. 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. 609. Integration. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous 39 EXHIBIT 4 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 solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. This Agreement includes pages 1 through 43 and Exhibits A through Q, which constitute the entire understanding and agreement of the parties, notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. 610. Real Estate Brokerage Commission. The Agency 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 Developer's acquisition of the Sites from the Agency. The parties agree to defend and hold harmless the other party 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 ply. 611. 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 parry 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. 612. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 613. 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. 614. No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other 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. 615. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party. 616. Severability. If any term, provision, condition or covenant of this Agreement and its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 40 EXHIBIT 4 617. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens), 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. 618. 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. 619. Time of Essence; Force Majeure. Time is expressly made of the essence with respect to the performance by the Agency and the Developer of each and every obligation and condition of this Agreement. Notwithstanding the foregoing, the time for performance of any obligation by either party shall be extended by the duration of any event constituting Force Maj eure. 620. 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. 621. Maintenance Covenants. During the time of Developer's ownership of the Sites, the Developer shall maintain the Sites and all improvements thereon, including all landscaping, in compliance with the terms of all applicable provisions of the City of Santa Ana Municipal Code. Developer shall be relieved of such obligation upon the transfer of a House to the Homebuyer, at which time the parties expect the Homebuyer to undertake such maintenance. 622. Conflicts of Interest. No member, official or employee of the Agency 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. 623. Date of Agreement. The date of this Agreement shall be the date set forth in the first paragraph hereof. 41 EXHIBIT 4 IN WITNESS WHEREOF, the Agency and the Developer have executed this Agreement on the date set forth hereinabove. AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic LI-A Cynthia J. Nelson, Executive Director ATTEST: Maria D. Huizar, Secretary APPROVED AS TO FORM: JOSEPH W.FLETCHER Agency General Counsel By: Lisa E. Storck, Assistant Counsel DEVELOPER: Habitat for Humanity of Orange County By: Mark Korando, Senior Vice President Title: 42 EXHIBIT 4 x:111_ M LIST OF EXHIBITS Exhibit A — Legal Description(s) Exhibit B — Site Map Exhibit C - Developer Promissory Note Exhibit D — Developer Deed of Trust Exhibit E — Notice of Affordability Restrictions on Transfer of Property Exhibit F — Grant Deed (Agency to Developer) Exhibit G —Project Budget Exhibit H — Release of Construction Covenants Exhibit I — Schedule of Performance Exhibit J — Scope of Development Exhibit K — Additional Insured Endorsement Exhibit L — Marketing Plan Exhibit M — Income Statement and Definitions Exhibit N — Agency Promissory Note (Homebuyer) Exhibit O — Agency Deed of Trust (Homebuyer) Exhibit P — Homebuyer Loan Agreement Exhibit Q — Affordable Housing Resale Restrictions �:111_P196� REQUEST FOR COUNCIL/ AGENCY ACTION MEETING DATE: MARCH 21, 2011 TITLE: JOINT PUBLIC HEARING — RESOLUTION AND THIRD AMENDMENT TO THE DISPOSITION AND DEVELOPMENT AGREEMENT WITH VISTA DEL RIO HOUSING PARTNERS, L.P. CITY MANAGER EXECUTIVE ECTOR RECOMMENDED ACTION CITY COUNCIL CLERK OF COUNCIL USE ONLY: m mP1= ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution making certain findings with respect to the consideration to be received by the Community Redevelopment Agency pursuant to a Disposition and Development Agreement between the Community Redevelopment Agency and Vista Del Rio Housing Partners, L.P., for the sale of certain real property in the City of Santa Ana and approving the sale of said real property upon the terms and conditions contained in that Agreement. COMMUNITY REDEVELOPMENT AGENCY Authorize the Executive Director of the Community Redevelopment Agency and Agency Secretary to execute the attached Loan Agreement with Vista Del Rio Housing Partners, L.P. in the amount of $469,000, subject to non - substantive changes approved by the Executive Director and Agency General Counsel. 2. Authorize the Executive Director of the Community Redevelopment Agency and Agency Secretary to execute the attached Third Amendment to the Disposition and Development Agreement with Vista Del Rio Housing Partners, L.P., subject to non - substantive changes approved by the Executive Director and Agency General Counsel. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its regular meeting on March 15, 2011, by a vote of 6:0, the Community Redevelopment and Housing Commission recommended that City Council adopt a resolution and that the Agency x:11 = Joint Public Hearing — DDA and Resolution -Vista Del Rio March 21, 2011 Page 2 authorize execution of a Loan Agreement and the Third Amendment to the Disposition and Development Agreement with Vista Del Rio Housing Partners, L.P. DISCUSSION On July 20, 2009, the Community Redevelopment Agency (Agency) authorized execution of a Disposition and Development Agreement (DDA) with Vista Del Rio Housing Partners, L.P. (Developer) for development of a 41 unit, handicapped accessible affordable housing project on a 3.2 acre vacant site owned by the Agency (project). The DDA also included a $100,000 grant to the Developer to pay for entryway construction and a $500,000 HOME Program loan. On March 15, 2010, the DDA was amended so as to increase the HOME Program loan amount to $1.5 million. A second amendment was approved on December 20, 2010, to extend the date to obtain all necessary financing. Since the DDA was approved, the Developer was not successful in obtaining low income housing tax credits and is requesting approval of a $469,000 Agency loan so as to improve its prospects for success with another application. This loan will require a third amendment to the DDA. The attached Exhibit 1 is a Sources and Uses budget showing the project's estimated development costs and funding sources. The project was entitled by the City Council at the same joint meeting where the DDA was approved. In order to obtain public input during the process leading to entitlement, public meetings were held in the four surrounding neighborhoods: Concord, Riverglen, Casa de Santiago, and Riverview. Additionally, a public hearing was conducted by the Planning Commission on March 9, 2009. The developer continues to work to ensure that neighborhood concerns are addressed. FISCAL IMPACT Funds for the Community Redevelopment Agency loan are available in the Low and Moderate Income Housing accounts (no. 50718830 - 66220). APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez he L ry-Bayle r Housing anager Executive Director 0 Community Development Agency Finance & Management Services Agency NTE /SLB /TG /mlr Exhibits: 1. Sources and Uses Budget 2. Resolution 3. Agreement 4. DDA ,. 1 7 i Sources and Uses Budget Funding Sources (Permanent Financine) Source Amount Federal Tax Credit Equity $7,183,105 Section 8 Loan $416,254 Deferred Developer Fee $83,793 City of Santa Ana RDA Loan $469,000 City of Santa Ana HOME Program Loan $1,500,000 NSHP "Solar" Rebate $54,000 Solar Credits 1603 $69,339 Goodwill Industries Loan $125,000 City of Santa Ana RDA Grant $100,000 City of Santa Ana RDA Land $2,900,000 Total Permanent Financing $12,900,491 Funding Uses Use Amount Land Acquisition $2,920,000 New Construction $5,822,284 Architectural and Engineering Fees $994,000 Construction Loan Interest and Fees $616,892 Permanent Financing Origination and Closing Costs $29,163 Legal and Audit Fees $100,000 Operating Reserves $135,494 Appraisal and Market Study $18,000 California Tax Credit Allocation Committee Fees $49,295 Permit Processing Fees $714,420 Marketing $22,550 Furnishings and Appliances $45,100 Soft Cost Contingency $175,362 Developer Profit and Overhead $1,257,930 Total Project Uses $12,900,490 Exhibit 1 �9611 i RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF SANTA ANA MAKING CERTAIN FINDINGS WITH RESPECT TO THE CONSIDERATION TO BE RECEIVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA PURSUANT TO A DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE AGENCY AND VISTA DEL RIO HOUSING PARTNERS, L.P., FOR THE SALE OF CERTAIN REAL PROPERTY AND APPROVING THE SALE OF SAID REAL PROPERTY UPON THE TERMS AND CONDITIONS CONTAINED IN THAT AGREEMENT 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 Redevelopment Projects, including strengthening of public - private partnerships to provide more affordable housing, and particularly to provide decent, safe, sanitary, and affordable housing to the lower income citizens of the City of Santa Ana. B. In order to implement the Redevelopment Plan, the Agency proposes to sell said real property located at 1600 W. Memory Lane (the Property) pursuant to the terms and provisions of a Disposition and Development Agreement (hereinafter referred to as the "Agreement ") between the Agency and Vista del Rio Housing Partners, L.P., a limited partnership ( "Developer "), which is on file in the office of the Executive Director of the Agency. C. Developer plans to develop a 41 unit, handicapped accessible affordable rental housing project on the 3.2 acre vacant site owned by the Agency. The term of affordability for such units will be fifty -five (55) years. Exhibit 2 1 x:11 = D. The consideration for the Properties is not less than the fair market value of the land at the use and with the long term affordability covenants and conditions and development costs authorized by the sale. E. The Agreement contains all of the provisions, terms, conditions and obligations required by the state and local laws, as well as long -term affordability covenants benefiting the Agency and the community. F. Developer possesses the qualifications and financial resources necessary to acquire and insure development of the Properties as the 41 units shall be rented to qualified low income persons in accordance with the purpose and objectives of the Redevelopment and Implementation Plan. G. Pursuant to the provisions of the California Redevelopment Law, the Agency and the City Council have held a duly noticed joint public hearing on the proposed sale of the Properties in compliance with Health and Safety Code section 33433. Section 2. The City Council has considered all terms and conditions of the proposed sale to Developer and hereby finds and determines that the sale and development of the Property pursuant to the Agreement is in the best interest of the City of Santa Ana and the health, safety and welfare of its residents, and is in accord with the public purpose and provisions of the applicable state and local laws. Section 3. The City Council hereby finds and determines that the consideration for the sale of the Properties pursuant to the Disposition and Development Agreement is not less than the fair market value of the Property determined in accordance with the covenants and conditions governing the sale. Section 4. The sale of the Property by the Agency to Developer upon the terms and conditions contained in the Agreement is hereby approved. Section 5. The Clerk of the Council shall attest to and certify the vote adopting this Resolution. 2 �:1i ADOPTED this day of , 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: City Attorney By: Lisa E. Storck Assistant City Attorney AYES: NOES: Councilmembers: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. to be the original resolution adopted by the City Council of the City of Santa Ana on 2011. Date: Clerk of Council City of Santa Ana x:11 = �i11 7 i� FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Community Redevelopment Agency 20 Civic Center Plaza (M -37) P.O. Box 1988 Santa Ana, California 92702 Attention: Executive Director LOAN AGREEMENT by and among the CITY OF SANTA ANA, COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA And VISTA DEL RIO HOUSING PARTNERS, L.P., Dated: March_, 2011 EXHIBIT 3 DOCSOC/ 1475221 v5/200272 -0004 8OB -9 TABLE OF CONTENTS Page 1. DEFINITIONS AND INTERPRETATION ................................................ ..............................2 1.1 Defined Terms ................................................................................. ..............................2 1.2 Singular and Plural Terms .............................................................. .............................10 1.3 References and Other Terms 1.4 .......................................................... .............................10 Exhibits Incorporated ..................................................................... .............................10 2. [RESERVED] ............................................................................................. .............................10 3. SCOPE OF WORK/ PROJECT BUDGET ................................................ .............................10 4. [RESERVED] ............................................................................................. .............................10 5. LOANS: ................................................................................................................................... 10 5.1 City /HOME Loan ........................................................................... .............................10 5.2 Agency Loan .................................................................................. .............................11 5.3 Other Terms and Conditions of the Loans ..................................... .............................11 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS .............. .............................12 6.1 Conditions Precedent ..................................................................... 6.2 .............................12 Disbursement Procedures for Loans 6.3 .............................................. .............................13 First Disbursement 6.4 ......................................................................... .............................14 Termination for Failure of Condition 6.5 ............................................. .............................14 Any Disbursement 6.6 .......................................................................... .............................14 Final Disbursement 6.7 ........................................................................ .............................14 Waiver of Conditions 6.8 ..................................................................... .............................15 Disbursement Requests 6.9 .................................................................. .............................15 Manner of Disbursement 6.10 ................................................................ .............................15 Cost Overruns 6.11 ................................................................................. .............................16 Cost Savings 6.12 ................................................................................... .............................16 Retainage 6.13 ........................................................................................ .............................16 Waiver of Disbursement Conditions 6.14 .............................................. .............................17 Modification of Disbursement Conditions and Procedures ........... .............................17 6.15 Closing Costs and Fees .................................................................. .............................17 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY17 7.1 Use Covenants and Restrictions ..................................................... 7.2 .............................17 Affordable Gross Starting Rents (Less Reasonable Utility Allowance) .....................18 7.3 Rental Vouchers ............................................................................. 7.4 .............................19 Rent Increases ................................................................................ .............................20 8. [RESERVED.] ............................................................................................ .............................20 9. GENERAL PROVISIONS AND WARRANTIES .................................... .............................20 9.1 Formation, Qualification and Compliance ..................................... 9.2 .............................20 Execution and Performance of Loan Documents .......................... .............................20 9.3 Financial and Other Information .................................................... .............................21 9.4 No Material Adverse Change ......................................................... .............................21 i DOC SOC/ 1475221 v5/200272 -0004 8OB -10 10. 11 12. 9.5 Tax Liability .......................... ............................... 9.6 Governmental Requirements . ............................... 9.7 Rights of Others .................... ............................... 9.8 Litigation ............................... ............................... 9.9 Bankruptcy ............................ ............................... 9.10 Information Accurate 9.11 Conflicts of Interest ............... ............................... 9.12 Nonliability of City Officials and Employees...... 9.13 No Assignment ...................... ............................... 9.14 Applicable Law ..................... ............................... 9.15 Third Parties .......................... ............................... 9.16 Control of Property ............... ............................... CONDITIONS FOR CONSTRUCTION ......................... .................. ............................... 21 .................. ............................... 21 .................. ............................... 22 .................. ............................... 22 .................. ............................... 22 .................. ............................... 22 .................. ............................... 22 .................. ............................... 22 .................. ............................... 22 .................. ............................... 22 .................. ............................... 22 .................. ............................... 23 ...................... ............................... 23 10.1 Permits and Approvals ................................................................... 10.2 .............................23 Commencement and Completion of Construction ......................... .............................23 10.3 Change Orders ................................................................................ .............................23 10.4 Entry and Inspection ...................................................................... .............................23 10.5 Compliance with Section 3 Clause ................................................ .............................23 10.6 Construction Information ............................................................... .............................25 10.7 Protection Against Liens ................................................................ .............................25 FEDERAL (HOME PROGRAM) AND STATE REDEVELOPMENT COVENANTS .......25 11.1 [Intentionally Omitted] ................................................................... .............................25 11.2 Qualification as Affordable Housing ............................................. .............................25 11.3 Tenant and Participant Protection .................................................. 11.4 .............................25 [Intentionally Omitted] ................................................................... .............................26 11.5 Handicapped Accessibility ............................................................. 11.6 .............................26 Use of Debarred, Suspended, or Ineligible Participants ................. .............................26 11.7 Maintenance of Drug -Free Workplace ........................................... 11.8 .............................26 Lead -Based Paint 11.9 ........................................................................... .............................26 Affirmative Marketing 11.10 ................................................................. ............................... Equal Opportunity and Fair Housing 26 26 11.11 ........................................... ............................... Property Standards 11.12 ......................................................................... .............................26 [Intentionally Omitted] 11.13 ................................................................... .............................26 Other Program Requirements 11.14 ......................................................... .............................26 Request for Disbursements of Funds 11.15 ............................................. .............................26 Eligible Costs 11.16 ................................................................................. .............................26 Records and Reports 11.17 ...................................................................... .............................27 Reserved 11.18 ......................................................................................... .............................27 Conflict of Interest 11.19 ......................................................................... .............................27 Monitoring 11.20 ..................................................................................... .............................27 Recertification of Tenant Income ................................................... .............................27 11.21 Other HOME Program Requirements ............................................ 11.22 .............................27 Controlling Covenants ................................................................... .............................27 MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY.............................................................................................. ............................... 27 12.1 Maintenance ......................... ii DOCSOC/ 1475221 v5/200272 -0004 8OB -11 27 DOC SOC/ 1475221 v5/200272 -0004 8OB -12 12.2 Compliance with Laws ................................................................... .............................28 12.3 Taxes and Impositions .................................................................... .............................28 12.4 [Intentionally omitted] ................................................................... 12.5 .............................29 Project Operating Budget ............................................................... .............................29 12.6 Replacement Reserve Account ...................................................... .............................29 13. NONDISCRIMINATION COVENANTS ................................................. .............................29 13.1 Obligation to Refrain from Discrimination .................................... .............................29 13.2 Nondiscrimination in Employment ................................................ .............................30 13.3 Statutory Nondiscrimination Covenants ........................................ .............................30 13.4 In Affordable Housing Restrictions ............................................. ............................... 31 14. ENVIRONMENTAL MATTERS .............................................................. .............................31 14.1 Representation and Warranty ......................................................... .............................31 14.2 Compliance with Environmental Laws .......................................... .............................31 14.3 Presence of Hazardous Materials ................................................... .............................31 14.4 Notice of Environmental Matters ................................................... .............................32 14.5 Environmental Indemnification by the Vista Del Rio .................... .............................32 15. OTHER AFFIRMATIVE COVENANTS .................................................. .............................32 15.1 Existence ...................................................................................... ............................... 32 15.2 Protection of Lien ........................................................................... .............................32 15.3 Notice of Certain Matters ............................................................... .............................32 15.4 Further Assurances ......................................................................... .............................33 15.5 Annual Audited Financial Statements ............................................ .............................33 15.6 Audits and Access to Records ........................................................ 15.7 .............................33 Termite Inspection Report .............................................................. .............................34 16. OTHER NEGATIVE COVENANTS ......................................................... .............................34 16.1 Default on Senior Loan ................................................................ 34 16.2 ............................... Transfers of Interest in Property or Agreement ............................. .............................34 17. [RESERVED] ............................................................................................. .............................36 18. INDEMNIFICATION ................................................................................ .............................36 18.1 Nonliability of Agency and City .................................................... 18.2 .............................36 Indemnity 18.3 ....................................................................................... .............................37 Reimbursement of City and Agency .............................................. .............................37 19. INSURANCE, CASUALTY AND CONDEMNATION ........................... .............................37 19.1 Policies Required ........................................................................... .............................37 19.2 City Attorney and/or City Risk Manager May Modify .................. .............................38 19.3 Claims and Proceedings ................................................................. 19.4 .............................38 Delivery of Proceeds to City /Agency ............................................ .............................38 19.5 Application of Casualty Insurance Proceeds .................................. .............................39 19.6 Method of Disbursement and Undisbursed Funds ....................... ............................... 39 19.7 Failure to Satisfy Conditions .......................................................... 19.8 .............................39 Restoration 19.9 ..................................................................................... .............................39 Condemnation; Treatment Compensation of ................................. .............................40 19.10 Waiver of Subrogation ................................................................... .............................40 DOC SOC/ 1475221 v5/200272 -0004 8OB -12 20. DEFAULTS AND REMEDIES ................................................................. .............................40 20.1 Events of Default ............................................................................ .............................40 20.2 Remedies Upon Default ................................................................. .............................42 Exhibit C - 20.3 Cumulative Remedies: No Waiver ................................................. .............................42 City/HOME Loan Note 21. MISCELLANEOUS ................................................................................... .............................43 21.1 Obligations Unconditional and Independent .................................. .............................43 21.2 Notices ........................................................................................... .............................43 Scope of Work/Budget 21.3 Survival of Representations and Warranties .................................. .............................44 21.4 [Intentionally Omitted] ................................................................... .............................44 21.5 Binding Effect; Assignment of Obligations ................................... .............................44 21.6 Prior Agreements; Amendments; Consents ................................... .............................44 21.7 Governing Law ............................................................................... .............................44 21.8 Severability of Provisions .............................................................. .............................44 21.9 Headings ......................................................................................... .............................44 21.10 Conflicts ......................................................................................... .............................44 21.11 Time of the Essence ....................................................................... .............................45 21.12 Conflict of Interest ......................................................................... .............................45 21.13 Warranty Against Payment of Consideration ................................ .............................45 21.14 Nonliability of City and Agency Officials and Employees ............ .............................45 21.15 Plans and Data ................................................................................ .............................45 21.16 Authority to Enter Agreement ........................................................ .............................45 21.17 Subsequent Approvals .................................................................... .............................45 21.18 City, Agency and Authority Approvals and Actions ..................... .............................45 EXHIBIT LIST Exhibit A - Legal Description of Property Exhibit B - Affordability Restrictions on Transfer of Property Exhibit C - City /HOME Loan Deed of Trust Exhibit D - City/HOME Loan Note Exhibit E - Agency Loan Deed of Trust Exhibit F - Agency Loan Note Exhibit G - Scope of Work/Budget Exhibit H - Marketing Plan iv DOC SOC/ 1475221 v5/200272 -0004 8OB -13 LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement ") dated, for identification purposes only, as of March , 2011, is made and entered into by and among the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic (the "Agency "), the CITY OF SANTA ANA, a charter city and municipal corporation (referred to herein separately as the "City "), and VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership ( "Vista Del Rio "), with reference to the following: RECITALS: A. City has received an allocation of funds from the United States Department of Housing and Urban Development ( "HUD ") under the HOME Program to be used in accordance with applicable HOME Regulations (as those terms are defined below); B. Among the purposes of the HOME Program are (1) to expand the supply of decent, safe, sanitary, and affordable housing, with primary attention to rental housing, for very low- income and low- income Americans; and (2) to provide participating jurisdictions, on a coordinated basis, with the various forms of federal housing assistance, including capital investment, mortgage insurance, rental assistance, and other federal assistance, needed (a) to promote the development of partnerships among the federal government, states and units of general local government, private industry, and nonprofit organizations able to utilize all available resources to provide more of such housing, and (b) to expand the capacity of nonprofit Community Housing Development Organizations to develop and manage decent, safe, sanitary and affordable housing; C. The Agency is authorized by the Community Redevelopment Law of the State of California (Health and Safety Code sections 33000 et seq.) ( "CRL ") to expend funds to increase the supply of very low and low- income housing available at affordable housing costs; D. In part to further this goal, the Agency has created the Merged Project Area, within the City (the "Project Area "), and adopted a Redevelopment Plan for the redevelopment of the Project Area. In accordance with Section 33334.2, et seq., of the CRL, Agency sets aside a portion of the tax increment revenues it receives from the Merged Project Area in a separate low and moderate housing fund, which Agency uses for the construction, preservation, and rehabilitation of affordable housing for low income households; E. Vista Del Rio has entered into an agreement (the "Disposition and Development Agreement" as amended by the "First Amendment to Disposition and Development Agreement ", "Second Amendment to Disposition and Development Agreement, and "Third Amendment to Disposition and Development Agreement "; collectively, the "DDA ") with the Agency to acquire and develop approximately 3.2 acres of real property, within the Project Area, located generally at 1600 Memory Lane in the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property "). The loans referenced herein shall assist Vista Del Rio with the cost of construction of said Property that is improved with a multifamily residential housing development. F. In furtherance of the HOME Program, the CRL, and the Redevelopment Plan, Vista Del Rio has applied to City and Agency for loans with which to: DOCSOC/ 1475221 v5/200272 -0004 8OB -14 I . provide deeper affordability for a longer term, as well as acquire and develop the Property, and; 2. thereafter to maintain, operate and professionally manage the Property as decent, safe, sanitary and affordable rental housing. G. City desires to make a loan to Vista Del Rio pursuant to the terms and conditions set forth herein in order to make possible the construction of the Property, thereby eliminating blight while expanding the supply of decent, safe, sanitary and affordable housing. H. Agency desires to make a loan to Vista Del Rio pursuant to the terms and conditions set forth herein in order to make possible the construction of the Property, thereby eliminating blight while expanding the supply of decent, safe, sanitary and affordable housing. I. If there is any discrepancy between Federal and State guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City and Vista Del Rio agree as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and /or as set forth in this Article 1. In the event of a conflict between the definitions set forth in the DDA, as amended, and the definitions set forth in this Agreement, the definitions set forth in this Agreement shall control. "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 50052.5. "Affordable Rent" means the monthly rents that are set forth in more detail in Section 7 of this Agreement. "Affordability Restrictions on Transfer of Property" 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 Vista Del Rio and recorded against the Property in the Official Records of the County. The Affordability Restrictions on Transfer of Property and the legally required notice thereof are attached hereto as Exhibit B and incorporated herein. "Agency" means the Community Redevelopment Agency of the City of Santa Ana, a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the CRL. The principal office of the Agency is located at 20 Civic Center Plaza, Santa Ana, California, 92702. Agency shall also refer to the City where the context dictates, to the effect that City shall have all rights granted to the Agency hereunder. "Agency Loan" means a loan in the original principal amount of up to FOUR HUNDRED SIXTY -NINE THOUSAND DOLLARS ($469,000.00) to be made to Vista Del Rio by 2 DOCSOC/ 1475221 v5/200272 -0004 8OB -15 the Agency solely from tax increment moneys set aside in Agency's low and moderate income housing fund. "Agency Loan Deed of Trust" means the deed of trust to be recorded against the Property in the Official Records of the County, in substantially the form attached hereto as Exhibit E, which shall be executed by Vista Del Rio pursuant to Section 5.2.2 in order to secure the Agency Loan Note. "Agency Loan Note" means that certain promissory note in the original principal amount of up to FOUR HUNDRED SIXTY -NINE THOUSAND DOLLARS ($469,000.00) in substantially the form attached hereto as Exhibit F, which shall be executed by Vista Del Rio in favor of Agency to evidence the obligation of Vista Del Rio to repay the Agency Loan. "Area Median Income" and "AMI" means the median income for the Orange County, California PMSA as most recently determined by HUD. "Authority" means the Santa Ana Housing Authority, a public body, corporate and politic. "Building Permit" means the grading and building permit(s) issued by City and required for the Construction. "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 30. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City" shall also refer to the Agency where the context dictates, to the effect that Agency shall have all the rights granted to the City hereunder other than the right to receive repayment of the City/HOME Loan. "City/HOME Loan" means a loan in the original principal amount of up to ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00) to be made to Vista Del Rio by City from HOME Program funds pursuant to Article 5 of this Agreement. "City/HOME Loan Deed of Trust" means the deed of trust to be recorded against the Property in the Official Records of the County, in substantially the form attached hereto as Exhibit C, which shall be executed by Vista Del Rio pursuant to Section 5.1.2 in order to secure the City /HOME Loan Note. "City/HOME Loan Note" means that certain promissory note in the original principal amount of up to ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00) in substantially the form attached hereto as Exhibit D, which shall be executed by Vista Del Rio in favor of City to evidence the obligation of Vista Del Rio to repay the City /HOME Loan. "Close of Escrow" shall mean the date upon which the Deeds of Trust are recorded in the Official Records of the County. 3 DOCSOC /1475221 v5/200272 -0004 �:,i : "Closing Statement" means the final statement of Vista Del Rio's Escrow account for the purchase of the Property pursuant to the DDA. "Construction" means the demolition and construction activities required to construct the 41 residential unit, multi - family project specified in City Site Plan Review No. 2009- 02. "Construction Contract" means each and every contract between Vista Del Rio, 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. The Construction Contract between Vista Del Rio 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 Directors, 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 Directors 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 Vista Del Rio's obligation to obtain and submit all required Section 3 Clause documentation. The Construction Contract shall include any and all provisions required by the CRL, the Section 8 requirements and the HOME Regulations, as applicable. "Construction Lender" means the maker of the Construction Loan. "Construction Loan" means that certain construction loan from the Construction Lender to Vista Del Rio. "County" means the County of Orange, California. "Deeds of Trust" means the Agency Loan Deed of Trust and the City/HOME Loan Deed of Trust. "DDA" means that Disposition and Development Agreement entered into by Agency, Authority and Vista Del Rio and dated as of July 20, 2009, as amended by the First Amendment to Disposition and Development Agreement dated as of March 15, 2010, that Second Amendment to Disposition and Development Agreement dated as of December 20, 2010, and that Third Amendment to Disposition and Development Agreement dated as of "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), 4 DOCSOC/ 1475221 v5/200272 -0004 �:TI = (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. "Escrow" means Escrow No "Escrow Holder" means First American Title Company in Santa Ana, California. "Event of Default" has the meaning set forth in Section 20.1. "Executive Directors" means, collectively, the City Manager of the City and/or the Executive Director of the Agency, and /or the Executive Director of the Authority, 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, adjusted for household size, as annually published by HUD. "General Contractor" means the general contractor to be hired by Vista Del Rio 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, and the land use entitlement to be approved by City. The General Contractor shall be reasonably acceptable to and approved by the Executive Directors, in their 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, subject to all applicable federal, state and local laws, rules and regulations, including without limitation the HOME Regulations, Section 8 Requirements, Section 3, the CRL, and all other applicable Governmental Requirements. "General Partner(s)" means the General Partners of Vista Del Rio. "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 including the Authority, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the Agency, Vista Del Rio or Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor DOC SOC/ 1475221 v5/200272 -0004 8OB -18 standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to 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. "Grant Deed" means a grant deed for the conveyance of the Property to Vista Del Rio in a form reasonably acceptable to Vista Del Rio and the Executive Directors. "HAP Contract" shall mean, collectively, the initial "Agreement to Enter into Housing Assistance Payments Contract" (such contract may be referred to as the "AHAP ") and the initial Housing Assistance Payments Contract to be entered into by and between Authority and Vista Del Rio expressly subject to all Section 8 Requirements and other applicable federal laws and regulations and pursuant to which Authority will agree to provide Project Based Section 8 assistance to a specified number of Units at the Project in accordance with the DDA, as amended. Pursuant and subject to HR3221, enacted July 30, 2008, the HAP Contract is expected to be for a term of effectiveness of fifteen (15) years, expressly subject to all Section 8 Requirements. Renewals, if any, of the HAP Contract by HUD (and Authority) beyond the first 15 years thereof are and shall remain subject to the sole and absolute discretion of the Executive Directors and the Section 8 Requirements, and all provisions of this Agreement, including Section 7.3, et seq. Notwithstanding anything to the contrary set forth herein or in any other Project Document, the Partnership Agreement, the Senior Loan Documents, or any other document or instrument entered into by Vista Del Rio, Authority and /or any third party(ies) relating to the Project or the Property, nothing set forth in any such instruments shall modify, amend, or alter be construed or deemed to modify, amend or alter any provision or term of the HAP Contact. "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 et seq. "HOME Compliance Period" means fifteen (15) years from the later to occur of (1) issuance of the Release of Construction Covenants, (2) the date on which City reports the Construction of the Project is complete to HUD, or (3) payment in full of all of principal and all accrued interest on the HOME Loan. 6 DOCSOC/ 1475221 v5/200272 -0004 8OB -19 "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. Vista Del Rio covenants hereunder to comply with the CRL, the Section 8 requirements, 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 Unit shall be rented at an Affordable Rent to households whose annual income is in compliance with the HOME Regulations; 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 Units which shall be designated as HOME Units and shall be subject to all applicable HOME Regulations. All HOME Units shall be "Low HOME" units pursuant to the HOME Regulations. The HOME Units shall be "fixed" HOME Units, such that the specific Units designated as HOME Units shall not change. Vista Del Rio shall designate eleven (11) of the Units as HOME Units, subject to approval by the Executive Directors and in accordance with this paragraph, the HOME Program, and the HOME Regulations. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting). "Indemnitees" means City, Agency, and Authority and their past and present elected officials, officers, employees, attorneys, contractors, elective and appointive boards and commissions, representatives, agents, and volunteers.. "Limited Partner" means the Limited Partners of Vista Del Rio, and their successors and assigns. "Loan Documents" means, collectively, this Agreement, the Notes, the Deeds of Trust, the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the City or Agency requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. 7 DOCSOC/ 1475221 v5/200272 -0004 8OB -20 "Loans" means the City /HOME Loan and the Agency Loan. "Notes" means the City/HOME Loan Note and the Agency Loan Note. "Partnership Agreement" means the Agreement of Vista Del Rio Housing Partners, L.P., dated August 1, 2008, which was amended by the First Amendment to Agreement of Limited Partnership dated on or about June 8, 2009, as may be amended in the future with the approval of the Executive Directors. "Portable Voucher" shall mean Section 8 tenant -based vouchers, certificates of family participation under 24 CFR part 882 (Rental Certificate Program), rental vouchers under 24 CFR part 887 (Rental Voucher Program), and comparable documents evidencing participation in a program pursuant to the HOME Investment Partnership Act, 42 U.S.C. § 12701, et seq. and the implementing regulations located at 24 CFR part 92, as such now exist and as may hereafter be amended, or other tenant -based rental assistance programs. "Project" means the acquisition, construction, operation, maintenance, and management of the Property as Affordable Housing in accordance with the Scope of Work, this Agreement and the other Project Documents. "Project Based Section 8" shall mean housing choice vouchers held by the City and /or Authority pursuant to annual and /or multi -year contribution contract(s) with HUD, which may be used to assist specific housing units as authorized by and subject to Section 8(o)(13) of the U.S. Housing Act of 1937, 42 U.S.C. Section 1437f(o)(13), and the implementing regulations set forth at 24 CFR Part 983, and HR3221, enacted July 30, 2008. Pursuant to Section 311.7 of the DDA, Authority has agreed to provide no less than seven (7) but no more than ten (10) Project Based Section 8 vouchers as assistance for an equal number of Units, subject to: (1) all Section 8 Requirements, (2) the fulfillment or waiver of the Agency's Conditions Precedent, including without limitation Vista Del Rio securing financing in accordance with Section 311 of the DDA, and (3) the provisions of Section 311.7 of the DDA. In all events, Authority's obligation to provide Project Based Section 8 assistance to the Project is expressly conditioned upon the satisfactory completion of environmental review and the Authority's receipt of a release of federal funds from HUD. Accordingly: Notwithstanding any provision of this Agreement, the parties hereto agree and acknowledge that this Agreement does not constitute a commitment of federal funds, and that such commitment of funds or may occur only upon satisfactory completion of environmental review and receipt by Authority and/or City, as applicable, of a release of funds from the U.S. Department of Housing and Urban Development under 24 CFR Part 58. The parties further agree that the provision of any federal funds to the Project is conditioned on Authority's and/or City's, as applicable, determination to proceed with, modify or cancel the Project Based Section 8 funding based on the results of a subsequent environmental review. The parties hereto are further prohibited from undertaking or committing any federal funds to physical or choice - limiting actions, including property acquisition, demolition, movement, rehabilitation, conversion, repair or construction prior to the environmental clearance; the parties understand that the violation of this provision may result in the denial of any federal funds under this Agreement. DOCSOC /1475221 v5/200272 -0004 8 0 B _21 "Project Budget" means the line -item budget for the Project attached hereto as Exhibit G, as modified from time to time in accordance with this Agreement. "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, the Disposition and Development Agreement, and the other Loan Documents, the Affordability Restrictions, the Agreement to enter into Housing Assistance Payments Contract and Housing Assistance Payments Contract to be entered into by the Authority and Vista Del Rio in connection with the Authority's provision of Project Based Section 8 (defined in the DDA) assistance to Project, and all other documents, agreements and instruments to be executed by Vista Del Rio in furtherance of the Project. "Property" means the approximately 2.74 acres of real property, within the Project Area, located generally at 1600 Memory Lane in the City of Santa Ana, California. The Property is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Release of Construction Covenants" means the Release of Construction Covenants described in Section 310 of the DDA, a form of which is attached to the DDA as Attachment No. 6. "Section 504" means section 504 of the federal Rehabilitation Act of 1973, codified at 29 U.S.C. § 701 et seq., and its implementing regulations located at 24 CFR Part 8. "Section 8 Requirements" means Section 8(o)(13) of the U.S. Housing Act of 1937, 42 U.S.C. Section 1437f(o)(13), and the implementing regulations set forth at 24 CFR Part 983. "Senior Lender" means Loan Note(s). or any other holder of the Senior "Senior Loan" shall mean the senior loan being made by the Senior Lender, concurrent to the Loans for payment of a portion of the Construction costs incurred by Vista Del Rio relating to the Project, as approved by the Executive Directors, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan, all of which shall be subject to the approval of the Executive Directors. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term" the terms and conditions contained herein shall remain in effect for fifty -five (55) years, from the date the Release of Construction Covenants is recorded against the Property in the Official Records of the County. 9 DOCSOC/ 1475221 v5/200272 -0004 8OB -22 "Units" means the forty (40) for -rent, multi- family residential units (excepting the single manager's unit) in 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, adjusted for household size, as annually published by HUD. "Vista Del Rio" means Vista Del Rio Housing Partners, L.P., a California limited partnership, and its successors and assigns. "Vista Del Rio's Representative" shall mean the Chief Executive Officer of the General Partner of Vista Del Rio or his /her designee. 1.2 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. 1.3 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, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. [RESERVED] 3. SCOPE OF WORK/ PROJECT BUDGET A Scope of Work and Project Budget for the Property are attached hereto as Exhibit G. Any material change to the Scope of Work and /or Project Budget requested by Vista Del Rio shall be subject to the prior written approval of the Executive Directors. The design and Construction of the Project shall at all times comply with the DDA, the Scope of Development, the Scope of Work, the Project Budget, Section 504, the CRL, the HOME Regulations, the Section 8 Requirements, and all applicable Environmental Laws and Governmental Requirements. 4. [RESERVED] 5. LOANS: 5.1 City/HOME Loan 5.1.1 Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan of HOME Program funds to Vista Del Rio in the original 10 DOCSOC/ 1475221 v5/200272 -0004 8OB -23 principal amount of up to ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00) (the "City /HOME Loan ") for the Construction of the Project. 5.1.2 City/HOME Note and Deed of Trust. The City /HOME Loan shall be evidenced by the City/HOME Loan Note in substantially the form attached hereto as Exhibit C. The City /HOME Loan shall be secured by the City /HOME Loan Deed of Trust in substantially the form attached hereto as Exhibit B. The City /HOME Loan Deed of Trust shall be a deed of trust encumbering the Property, subordinate only to the Senior Loan(s) made to Vista Del Rio. 5.1.3 City/HOME Loan Terms. The terms and conditions of the City /HOME Loan are as set forth in the City /HOME Loan Note which is a residual receipts note. The City /HOME Loan Note shall be subordinate only to the Senior Loan, and shall continue in full force and effect for the entire HOME Compliance Period. 5.1.4 Use of City/HOME Loan Proceeds. Proceeds of the City /HOME Loan shall be used only for costs incurred by Vista Del Rio to construct the Improvements as set forth in the approved Project Budget. 5.2 Agency Loan 5.2.1 Amount and Purpose. Subject to the terms and conditions of this Agreement, Agency agrees to make the Agency Loan to Vista Del Rio from tax increment money in the original principal amount of up to FOUR HUNDRED SIXTY -NINE THOUSAND DOLLARS ($469,000.00) (the "Agency Loan ") for the Construction of the Project. The Agency Loan does not include the $100,000 reimbursement to be made by the Agency to Vista Del Rio pursuant to Section 201 of the DDA for the extra costs incurred by Vista Del Rio for the construction of the entry -way to the Project in excess of City Municipal Code requirements. 5.2.2 AA2ency Note and Deed of Trust. The Agency Loan shall be evidenced by the Agency Loan Note in substantially the form attached hereto as Exhibit F. The Agency Loan shall be secured by the Agency Loan Deed of Trust in substantially the form attached hereto as Exhibit E. The Agency Loan Deed of Trust shall be a deed of trust encumbering the Property, subordinate to the Senior Loan(s) and the City /HOME Loan made to Vista Del Rio. 5.2.3 Agency Loan Terms. The terms and conditions of the Agency Loan are as set forth in the Agency Loan Note which is a residual receipts note. The Agency Loan Note shall be subordinate only to the Senior Loan and the City /HOME Loan, and shall continue in full force and effect until the Agency Loan is repaid in full. 5.2.4 Use of Agency Loan Proceeds. Proceeds of the Agency Loan shall be used only for costs incurred by Vista Del Rio to construct the Improvements as set forth in the approved Project Budget. 5.3 Other Terms and Conditions of the Loans. 5.3.1 The Agency Loan Note and City /HOME Loan Note shall become immediately due and payable, in the event of any of the following: (a) failure to complete the Project within the time set forth in the Schedule of Performance subject to Force Majeure or other extensions as allowed in this Agreement; 11 DOCSOC/ 1475221 v5/200272 -0004 8OB -24 (b) violation of any of the use covenants and restrictions contained in this Agreement, the Affordability Restrictions on Transfer of Property, or any other Project Document after the expiration of any applicable notice and cure periods; or (c) an Event of Default by Vista Del Rio 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. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent. City's and Agency's respective obligations to disburse any amount of the Loans and Authority's obligation to provide Project Based Section 8 assistance to the Project is subject to the satisfaction, or waiver by the Executive Directors, of the following conditions precedent: (a) Loan Documents. Vista Del Rio shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Vista Del Rio, with such signature(s) acknowledged where necessary, each of the following documents: (i) the DDA; (ii) the Grant Deed; (iii)the City /HOME Loan Note; ( iv) the City /HOME Loan Deed of Trust; (v) the Agency Loan Note; (vi) the Agency Loan Deed of Trust; and (vii) The Affordability Restrictions on Transfer of Property. (b) Title Insurance. Agency and City shall each have received a 2006 ALTA Lender's loan policy of title insurance, or evidence of a commitment therefore satisfactory to City, issued by First American Title Insurance Company and in form and substance satisfactory to City, together with all endorsements and binders required, naming City and Agency as the insured, in a policy amount of not less than the amount of the Loans, showing Vista Del Rio as the fee owner of the Property and insuring the Deeds of Trust to be valid priority liens on the Property. The Notes and Deeds of Trust shall be subordinate to the Senior Loan Note and Senior Loan Deed of Trust. The Affordability Restrictions on Transfer of Property shall take priority over the Loan Documents pursuant to City /Agency's request. (c) Affordability Restrictions on Transfer of Property. Vista Del Rio shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit B, the Affordability Restrictions on Transfer of Property pursuant to which, among other things, Vista Del Rio agrees that the Property shall be used only for decent, safe, sanitary and affordable rental housing pursuant to the affordability requirements of Code of Federal Regulations ( "CFR ") section 92.252 or 92.254 and California Health and Safety Code sections 50052.5 and 33334.3, as applicable, and all other applicable provisions of the HOME Program, the CRL, and the Section 8 Requirements. 12 DOCSOC/ 1475221 v5/200272 -0004 8OB -25 (d) Documents Recorded. This Loan Agreement, the Grant Deed, the Deeds of Trust and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (e) Request for Notice. For the benefit of City and Agency, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default "). (f) Insurance. City shall have received evidence satisfactory to the City Attorney and /or Risk Manager that all of the policies of insurance required by Section 19 of this Agreement are in full force and effect. (g) Representations and Warranties. The representations and warranties of Vista Del Rio contained in this Agreement and the other Loan Documents shall be correct as of the Close of Escrow as though made on and as of that date, and if requested by the Executive Directors, City and Agency shall have received a certificate to that effect signed by Vista Del Rio's Representative. (h) No Default. No Event of Default by Vista Del Rio 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 Vista Del Rio under this Agreement, and if requested by the Executive Director, City shall have received a certificate to that effect signed by Vista Del Rio's Representative. 6.2 Disbursement Procedures for Loans. The Loan proceeds shall be disbursed to finance the construction of the Project. To the extent practicable, taking into consideration all HOME Regulations relating to the application of City /HOME Loan proceeds to the construction of HOME Units, Agency Loan and City/HOME Loan proceeds shall be disbursed on a pro -rata basis (based on the relative principal amounts of the Loans and the proportionate principal amount of the Loans in comparison to the total, cumulative sources of funding and financing for the Project). The Loan proceeds shall not be used for any purpose other than for development related costs incurred by Vista Del Rio, including developer's fee and soft costs related to development of the Project, all in accordance with the approved Project Budget, with such costs all subject to the prior review by the Executive Directors. All disbursements shall be made as reimbursements to Vista Del Rio for costs actually and reasonably incurred by Vista Del Rio 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. No portion of the Loans shall be disbursed prior to the Close of Escrow. Subject to satisfaction of all Conditions Precedent set forth herein, proceeds of the Loans may be disbursed to Vista Del Rio to reimburse Vista Del Rio for Construction costs incurred prior to the Close of Escrow; provided that proceeds of the Loans shall only be used to pay a proportionate share of pre - closing Construction costs, based on the initial principal amount of the Loans compared to the total, cumulative sources of funding and financing for the Project (i.e. the Loans shall only be disbursed to pay a pro -rata portion of Construction costs, as described above). Vista Del Rio, Agency and City shall agree on a draw request schedule to ensure that the Agency and City are 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. 13 DOCSOC/ 1475221 v5/200272 -0004 6.3 First Disbursement. City's and Agency's obligation to make the first disbursement of the proceeds of the Loans is subject to satisfaction of the following conditions precedent: (a) General Contractor. If the Executive Directors have not yet approved the General Contractor, the Executive Directors shall have approved the identity and qualifications of the General Contractor. (b) Construction Contract. If the Executive Directors have not yet approved the Construction Contract, the Executive Directors shall have approved the Construction Contract. 6.4 Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied or waived by the Executive Directors, and (b) neither City nor Agency are in default under this Agreement, City and Agency may terminate this Agreement without any further liability on its part by giving written notice of termination to Vista Del Rio. Upon the giving of such notice, all principal, interest and other amounts owing under the Notes shall be immediately due and payable, regardless of any other specified due date. 6.5 Any Disbursement. City's and Agency's obligation to make any disbursement of the proceeds of the Loans (including the first and final disbursements) is subject to the satisfaction of the following conditions precedent: (a) SatisfactoLy Progress. The Executive Directors shall be satisfied, based on their own inspections or other reliable information, that the Construction is progressing satisfactorily in conformance with all applicable laws and other requirements (including HOME regulations). (b) Condition of Title. Either (i) the Executive Directors reasonably believe that no event has occurred since the Close of Escrow that would give rise to a colorable claim against the Property (e.g., a mechanic's lien) superior to the claim of City and Agency against the Property with respect to the subject disbursement, or (ii) City and Agency must have received, at Vista Del Rio's expense but payable out of the Construction Proceeds, from the title insurer who issued City's and Agency's LP -10 Title Policies, all endorsements thereto then reasonably required by the Executive Directors (including, without limitation, CLTA Form 122 — priority of advance endorsements). (c) Representations and Warranties. The representations and warranties of Vista Del Rio contained in this Agreement and the other Loan Documents shall be correct in all material respects as of the date of the disbursement as though made on and as of that date. (d) No Default. No Event of Default by Vista Del Rio shall remain uncured 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 Vista Del Rio. 6.6 Final Disbursement. City's and Agency's obligation to disburse that portion of the proceeds of the Loans retained pursuant to Section 6.12 is subject to the satisfaction of the following additional conditions precedent: (a) Construction Complete. The construction of the Project shall be complete. (b) Certificate of Completion and Release of Construction Covenants. Any portion of the construction requiring inspection or certification by any Governmental Authority shall have been inspected and certified as complete. Vista Del Rio shall request that the Building 14 DOCSOC/ 1475221 v5/200272 -0004 806'27 Department issue a Certificate of Completion pursuant to the City's normal procedures and requirements, a copy of which shall be delivered to the Executive Directors, in order for final disbursement to occur. In addition, the Agency shall have issued to Vista Del Rio the Release of Construction Covenants pursuant to Section 310 of the DDA. (c) Lien Free. At least one of the following shall have occurred: (i) Thirty -five (35) days shall have passed since the recording of a valid notice of completion for the construction, and no mechanic's or material man's lien shall be outstanding; or (ii) Ninety -five (95) days shall have passed since actual completion of the construction, and no mechanic's or materialman's lien shall be outstanding, or Vista Del Rio shall have bonded over any such lien to Executive Directors' reasonable satisfaction. 6.7 Waiver of Conditions. The conditions set forth pertaining to City's or Agency's obligation to make disbursements of the proceeds of the Loans are for City's and Agency's benefit only and the Executive Directors may waive all or any part of such rights by written notice to Vista Del Rio. 6.8 Disbursement Requests. The proceeds of the Loans shall be disbursed on a line - item by line -item basis in accordance with the Project Budget and subject to the conditions in this section. In no event shall City or Agency 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 Vista Del Rio's written request in the form of a Disbursement Request showing all costs which Vista Del Rio intends to fund with such disbursement, itemized in such detail as City or Agency may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to City or Agency, 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 City and Agency. 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 City or Agency of proceeds of the Loans, Vista Del Rio shall deliver to City and /or Agency and to the Construction Lender a draw request ( "Draw Request "), and all required supporting information as set forth in the Loan Documents or as otherwise reasonably required by City, Agency, or the Construction Lender in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City, Agency, and the Construction Lender shall notify the others and Vista Del Rio of approval or disapproval of each Draw Request within five (5) business days after receipt of the Draw Request, using the Bank's "Disbursement/Change Order Approval Notice ". City, Agency, and the Construction Lender 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. 6.9 Manner of Disbursement. City and Agency may make any disbursement by check payable to Vista Del Rio; or on a voucher basis; or by check payable jointly to Vista Del Rio and any 15 DOCSOC /1475221 v5/200272 -0004 806'28 contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by City, or Agency, as applicable. 6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by City, Agency, or Vista Del Rio to be required to complete all matters included in any line item by $10,000.00 in the Project Budget exceeds the amount allocated to that line item in the Project Budget, (b) Construction costs for any matters not covered by a specific line item have been or will be incurred in excess of $10,000.00, or (c) the undisbursed portion of the proceeds of the Loans is or may be insufficient to pay all Construction costs that may be payable under the Loan Documents or otherwise in connection with the Construction, Vista Del Rio shall, within ten (10) days after it receives written notice thereof from City or Agency of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to City and /or Agency that Vista Del Rio has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost ") with funds from a source other than the Loans; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the Executive Directors' reasonable consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non - interest bearing account (the "Overrun Account ") with the Construction Lender from which withdrawals may be made only with the consent of the Executive Directors 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. Neither Agency nor City shall have any obligation to make further disbursements until Vista Del Rio has paid or otherwise provided for the overrun as required above. Amounts deposited by Vista Del Rio in the Overrun Account for any Excess Costs shall be disbursed by the Construction Lender prior to the disbursement of any remaining proceeds of the Loans. 6.11 Cost Savings. 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 reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 6.12 Retainage. City and Agency will withhold a Retainage of 10% from each Disbursement for each of the Construction cost line items of the Project Budget until all conditions to the final disbursement of Construction costs have been satisfied. City shall not retain funds for building materials purchased by Vista Del Rio for which Vista Del Rio supplies documentation to City proving payment in full or for soft costs. 6.12.1 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 Directors) for "punch- list" items. Such holdback will be released when all punch -list items have been completed to the satisfaction of City and Agency. 16 DOCSOC/ 1475221 v5/200272 -0004 8OB -29 6.13 Waiver of Disbursement Conditions. Unless City otherwise agrees in writing, the making by 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. 6.14 Modification of Disbursement Conditions and Procedures. The Executive Directors 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 approved Construction Contract. 6.15 Closing Costs and Fees. Vista Del Rio shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the City's and Agency's policies of title insurance required hereunder. 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 7.1 Use Covenants and Restrictions. A. Vista Del Rio agrees and covenants, which covenants shall run with the land and bind Vista Del Rio, its successors, its assign and every successor in interest to the Property that Vista Del Rio will make all Units on the Property available solely to Extremely Low Income and Very Low Income households at Affordable Rents. The HOME Regulations applicable to the eleven (11) HOME Units shall be enforced during the entire HOME Compliance Period. Upon expiration of the HOME Compliance Period, the City and Agency will enforce affordability of said units with the same income and rent restrictions as the other units, pursuant to the requirements of Section 50052.5 of the Health and Safety Code and the CRL. Vista Del Rio further covenants and agrees that the Property shall be developed, operated, managed and maintained in accordance with Specific Development No. 83; Amendment Application 08 -11, as approved by the City of Santa Ana Planning and Building Agency and by the Santa Ana City Council pursuant to Ordinance No. NS -2790 of the City of Santa Ana, adopted August 3, 2009. B. The Project shall consist of forty income restricted units (and one unrestricted manager's unit). There shall be eleven (11) HOME Units. The eleven HOME Units will be fixed units and shall be distributed throughout the complex with comparable amenities to the other Units. C. At initial lease up, all households selected to rent and occupy the HOME Units shall be Very Low Income households and all households selected to rent and occupy the remaining units shall be Extremely Low Income and Very Low Income households, in accordance with the schedule set forth in Section 7.2 below. All rental increases shall be in conformance with federal and state law and approved by the Executive Directors. D. The rent charged for the on -site property manager's unit shall not be restricted. E. Affordable Rents charged to tenants shall be governed by California Health and Safety Code Sections 50052.5, 50053(b)(1), and 50053(b)(2), and as provided in the HOME Regulations 24 CFR section 92.2, whichever is less. 17 DOCSOC/ 1475221 v5/200272 -0004 8OB -30 7.2 Affordable Gross Starting Rents (Less Reasonable Utility Allowance). Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of Construction in accordance with any changes in allowable rent and income tables as published by HUD and the State of California, Department of Housing and Community Development. A. Agency and HOME Units Agency, City, and Vista Del Rio agree that the breakdown of unit affordability for the Units shall be as follows, under this Agreement: The rents charged at the Project must comply with the lowest and most restrictive of the following standards: The calculation methodology defined in (i) Section 50053(b)(1) for Extremely Low Income Households, or (ii) Section 50053(b)(2) for Very Low Income Households; 2. The rents published for Low Income Housing Tax Credit (Tax Credit) projects by the California Tax Credit Allocation Committee (TCAC); and With respect to the HOME Units, the Low HOME rents published by HUD. Agency, City, and Vista Del Rio agree that effective 2010 the initial maximum gross monthly Affordable Rents and the breakdown of unit affordability for the Extremely Low Income Units shall be as follows: Studio Extremely Low Units One Bedroom Extremely Low Units Two Bedroom Extremely Low Units # of Units # of Max. Gross (Agency) HOME units Monthly Rents* 4 2 $488 8 2 $523 2 2 $627 Agency, City, and Vista Del Rio agree that the Year 2010 initial maximum gross monthly Affordable Rents and the breakdown of unit affordability for the Very Low Income Units shall be as follows: # of Units (Agency) Studio Very Low Units One Bedroom Very Low Units Two Bedroom Very Low Units # of HOME Max. Gross units Monthly Rents* 2 $753 2 $861 1 $969 *Utilities Allowances must be deducted from the Maximum Gross Monthly Affordable Rent. The applicable utilities allowances are determined periodically by the Authority. 18 DOCSOC /1475221 v5/200272 -0004 8OB -31 Maximum Gross Monthly Rents shall be recalculated following issuance of a Release of Construction Covenants but prior to the time of initial lease -up in accordance with any changes in allowable rent and income tables as published by HUD and the State of California, and shall be as approved by the Executive Directors in writing in accordance with this Section. Such Maximum Gross Monthly Rents charged to the first tenants of the 41 units (40 Units plus manager's unit) shall constitute the Initial Rental Schedule. 7.3 Rental Vouchers. (a) In the event Vista Del Rio rents a Unit to a household holding a Portable Voucher, the rental agreement (or lease agreement, as applicable) between Vista Del Rio, as landlord, and the tenant shall expressly provide that the monthly rent charged shall be the Affordable Rent required hereunder for the Unit (not fair market rent) and that the rent collected directly from such tenant holding a portable rental voucher shall be not more than 40% of the tenant's actual gross income pursuant to the applicable voucher program regulations; i.e., the rent charged to such tenant under the rental agreement shall be the Affordable Rent chargeable hereunder and not fair market rent for the area, as would otherwise be permitted under the applicable Portable Voucher program. Thus, the subsidy payment to Vista Del Rio under any Portable Voucher shall not exceed the difference between forty percent (40 %) of the tenant's actual gross income and Affordable Rent chargeable for the applicable Unit hereunder (and under the Affordability Restrictions). (b) The parties acknowledge that Vista Del Rio and Authority intend to enter into the HAP Contract and that the Senior Lender is anticipated to underwrite a Senior Loan based in part on the Project Based Section 8 subsidy to the Project under the HAP Contract, including payments thereunder equal to the difference between 30% of each tenant household's actual gross income and the fair market rent for the area. In the event that, during the Term hereof, a new Housing Assistance Payments Contract is proposed to be entered into (or is entered into) with respect to any Units at the Project not already receiving Project Based Section 8 assistance under the HAP Contract (or those Units, after expiration of the HAP Contract), Vista Del Rio shall cause the rental agreement (or lease agreement, as applicable) for each Unit receiving Project Based Section 8 assistance pursuant to such new Housing Assistance Payments Contract (but not the HAP Contract) to provide that the monthly rent charged under such rental agreement (or lease agreement, as applicable) shall not exceed the Affordable Rent required hereunder for the Unit (not fair market rent). Thus, the subsidy payment to Vista Del Rio under any project -based rental voucher (other than with respect to the subsidy pursuant to the HAP Contract) shall not exceed the difference between thirty percent (30 %) of the tenant's actual gross income and Affordable Rent chargeable for the applicable Unit hereunder (and under the Regulatory Agreement). (c) Vista Del Rio hereby acknowledges and agrees that, upon completion of construction of the Project and leasing of the Units to Extremely Low Income and Very Low Income households pursuant to this Agreement, the DDA and the Affordability Restrictions, Vista Del Rio will have received governmental subsidies from Authority, City, Agency and TCAC (through the Tax Credits allocated to the Project) in exchange for Vista Del Rio's agreement to limit the rents charged to tenants of the Project to an Affordable Rent and Vista Del Rio further acknowledges and agrees that, except for the HAP Contract payments with respect to between 7 and 10 Units (as determined by Authority), which are part of the approved financing for the Project, acceptance of additional governmental rental subsidies resulting in total, cumulative rent payments to Vista Del Rio in excess of an Affordable Rent for any of the Units at the Project would constitute an unjustified windfall to Vista Del Rio at the expense of Authority and the federal and state governments. Further, 19 DOCSOC/ 1475221 v5/200272 -0004 with respect to the HOME Units, the HOME Regulations prohibit application of any Project Based Section 8 assistance, Portable Voucher, or other rental subsidy that, cumulatively with the rent to be paid by the tenant household, exceeds an Affordable Rent calculated pursuant to the HOME Regulations. 7.4 Rent Increases. On an annual basis, the Executive Directors shall provide Vista Del Rio with the maximum allowable schedule of Affordable Rents for the Property in accordance with changes in allowable rent and income tables published by HUD and the State of California, provided however that the rent for the HOME units shall in no event be higher than the rent for the equivalent Agency assisted Unit. In no event shall Vista Del Rio charge any tenant more than the Affordable Rents prescribed for the Units pursuant to this Agreement and as directed by the Executive Directors. [RESERVED.] 9. GENERAL PROVISIONS AND WARRANTIES As a material inducement to City and Agency to enter into this Agreement, Vista Del Rio represents and warrants as follows: 9.1 Formation, Oualification and Compliance. Vista Del Rio (a) is a limited partnership, validly existing and in good standing under the laws of the State of California, (b) has all requisite authority to conduct its business and own and lease its properties, and (c) is qualified and in good standing in every jurisdiction in which the nature of its business makes qualification necessary or where failure to qualify could have a material adverse effect on its financial condition or the performance of its obligations under the Loan Documents. Vista Del Rio is in compliance with all Governmental Requirements applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 9.2 Execution and Performance of Loan Documents. 9.2.1 Vista Del Rio has all requisite authority to execute and perform its obligations under the Loan Documents. 9.2.2 The execution and delivery of Vista Del Rio of, and the performance by Vista Del Rio of its obligations under, each Loan Document has been authorized by all necessary action and does not and will not: (a) require any consent or approval not heretofore obtained of any person having any interest in Vista Del Rio; (b) 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 Vista Del Rio; (c) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the Loan Documents) on or with respect to any property now or hereafter owned or leased by Vista Del Rio; (d) violate any provision of any law presently in effect; or 20 DOCSOC /1475221 v5/200272 -0004 ':e = �� (e) 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 Vista Del Rio is a party or by which Vista Del Rio or any of its property is bound. 9.2.3 Vista Del Rio is not in default, in any respect that is materially adverse to the interests of City or Agency under the Loan Documents or that would have any material adverse effect on the financial condition of Vista Del Rio or the conduct of its business, under any law, contract, lease or other agreement or document described in sub - paragraph (d) or (e) of the previous subsection. 9.2.4 Other than for building permits relating to the Project, 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: (a) the execution of Vista Del Rio of, and the performance by Vista Del Rio of its obligations under, the Loan Documents; and (b) the creation of the liens described in the Loan Documents. 9.3 Financial and Other Information. To the best of Vista Del Rio's knowledge, all financial information furnished to City and Agency with respect to Vista Del Rio 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 Vista Del Rio, and (c) to the extent applicable, has been prepared in accordance with generally accepted accounting principles consistently applied or in accordance with such other principles or methods as are reasonably acceptable to City. To the best of Vista Del Rio's knowledge, all other documents and information furnished to City and Agency with respect to Vista Del Rio, in connection with the Loans, are correct and complete insofar as completeness is necessary to give the City accurate knowledge of the subject matter. To the best of Vista Del Rio's knowledge Vista Del Rio has no material liability or contingent liability not disclosed to City and Agency 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 Vista Del Rio not disclosed in such financial statements or otherwise disclosed to City and Agency in writing. 9.4 No Material Adverse Chance. There has been no material adverse change in the condition, financial or otherwise, of Vista Del Rio since the dates of the latest financial statements furnished to City and Agency. Since those dates, Vista Del Rio has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to City and Agency in writing. 9.5 Tax Liability. Vista Del Rio has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to City and Agency in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Vista Del Rio is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to City and Agency. 9.6 Governmental Requirements. Vista Del Rio is in compliance with all laws relating to the Property /Project and all Governmental Authority approvals, including zoning, land use, 21 DOCSOC /1475221 v5/200272 -0004 8OB -34 planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; public utilities requirements, and any other Governmental Requirements applicable to the Property or the Project. 9.7 Rights of Others. Vista Del Rio is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8 Litigation. There are no material actions or proceedings pending or, to the best of Vista del Rio's knowledge, threatened against or affecting Vista Del Rio or any property of Vista Del Rio before any Governmental Authority, except as disclosed to City in writing prior to the execution of this Agreement. 9.9 Bankruptcy. To the best of Vista Del Rio's knowledge, no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Vista Del Rio, nor are any of such proceedings contemplated by Vista Del Rio. 9.10 Information Accurate. To the best of Vista Del Rio's knowledge, all information, regardless of its form, conveyed by Vista Del Rio to City and Agency, by whatever means, is accurate, correct and sufficiently complete to give City and Agency true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. 9.11 Conflicts of Interest. No member, official or employee of the City or Agency 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 Vista Del Rio warrants that it neither has paid nor given, nor will pay or give, any third party any money or other consideration for obtaining this Agreement. 9.12 Nonliability of City Officials and Employees. No member, official or employee of the City or Agency shall be personally liable to the Vista Del Rio in the event of any default or breach by the City or Agency or for any amount which may become due to Vista Del Rio or on any obligations under the terms of this Agreement. 9.13 No Assignment. Vista Del Rio expressly acknowledges and agrees that the City and Agency have only agreed to assist Vista Del Rio as a means by which to induce the construction and development of the Property /Project. Accordingly, Vista Del Rio further expressly acknowledges and agrees that this Agreement is a personal right of Vista Del Rio that is neither negotiable, transferable, nor assignable except as set forth in Section 16.2. 9.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and state laws. 9.15 Third Parties. The Authority is an intended third party beneficiary of this Agreement, with full rights (but no obligation) to enforce all terms, provisions and covenants contained herein. This Agreement is made for the sole benefit of Vista Del Rio, the City, the 22 DOCSOC/ 1475221 v5/200272 -0004 8OB -35 Agency, the Authority, and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the City or Agency hereunder or arising from any default by Vista Del Rio, nor shall the City, Agency or Authority owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the Construction of the Property. 9.16 Control of Property. The parties acknowledge that neither the Agency nor City has at anytime participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 10. CONDITIONS FOR CONSTRUCTION 10.1 Permits and Approvals. Vista Del Rio shall diligently obtain all Permits, including all grading and building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the construction and development of the Property /Project. 10.2 Commencement and Completion of Construction. The construction 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 completion) have been obtained. 10.3 Change Orders. The Construction Contract shall not be modified except pursuant to change orders. All change orders: (a) shall be in writing, numbered in sequence, signed by Vista Del Rio 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 Directors' and the Construction Lender's prior written approval. 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice, City or Agency and their respective agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the construction are stored, (b) the right to inspect all labor performed and materials furnished for the construction, and (c) the right to inspect and copy all documents pertaining to the construction. 10.5 Compliance with Section 3 Clause. Section 3 of the Housing and Urban Development act of 1968, 12 U.S.C. 1701 u, 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 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 23 DOCSOC/ 1475221 v5/200272 -0004 8OB -36 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 Vista Del Rio, 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: "(a) 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. 1701u ("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 Very Low Income Persons, Very Low Income Households, and Very Low Income Tenants served by the Project], particularly persons who are recipients of HUD assistance for housing. (b) 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. (c) 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. (d) 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 subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135. (e) 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. 24 DOCSOC/ 1475221 v5/200272 -0004 (f) 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, Vista Del Rio shall comply and /or cause compliance with Section 3 Clause requirements for the Project. For example, when and if Vista Del Rio 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. 10.6 Construction Information. From time to time during the course of the construction, but in no event more often than monthly, within ten (10) Business Days following Agency or City's written demand therefore, Vista Del Rio shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the construction, itemized as to trade description and item, showing the name of the contractor(s) and /or subcontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Against Liens. Vista Del Rio 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, Vista Del Rio shall immediately give written notice of the same to City and Agency and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the same, (b) effect the release thereof by delivering to City and Agency a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as City or Agency may require to release City and /or Agency from any obligation or liability with respect to such stop notice or claim. 11. FEDERAL (HOME PROGRAM) AND STATE REDEVELOPMENT COVENANTS 11.1 [Intentionally Omitted] 11.2 Oualification as Affordable Housing. As more particularly provided in the Affordability Restrictions on Transfer of Property, Vista Del Rio shall use, manage and operate the Property in accordance with the requirements of 24 CFR 92.252 and California Health and Safety Code section 50052.5 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.3 Tenant and Participant Protection. Vista Del Rio shall comply with the requirements of 24 CFR 92.253. 25 DOCSOC/ 1475221 v5/200272 -0004 �111 : 191 11.4 (Intentionally Omittedl 11.5 Handicapped Accessibility. Vista Del Rio shall comply with (a) Section 504 of the Construction 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 with respect to all Units at the Project. 11.6 Use of Debarred, Suspended, or Ineligible Participants. Vista Del Rio shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 11.7 Maintenance of Drug -Free Workplace. Vista Del Rio shall certify that Vista Del Rio will provide a drug -free workplace in accordance with 24 CFR 84.13. 11.8 Lead -Based Paint. Vista Del Rio shall comply with the requirements, as applicable of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821 -4846) and implementing regulations at 24 CFR 35. 11.9 Affirmative Marketing. Vista Del Rio shall implement and perform such affirmative marketing procedures and requirements for the Property (24 CFR 92.351) in compliance with the City's adopted Program (a copy of which is attached hereto and incorporated herein as Exhibit H). 11.10 Equal Opportunity and Fair Housing. Vista Del Rio 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. Vista Del Rio must also follow the requirements of Health and Safety Code section 33435. 11.11 Property Standards. Vista Del Rio 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. Vista Del Rio shall also cause the Property to meet the current edition of the Model Energy Code published by the Council of American Building Officials. 11.12 [Intentionally Omitted] 11.13 Other Program Requirements. Vista Del Rio shall carry out each activity in compliance with all federal laws and regulations described in subpart H of 24 CFR 92, except that Vista Del Rio does not assume City's responsibilities for environmental review in 24 CFR 92.352 or the intergovernmental review process in 24 CFR 92.359. 11.14 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Vista Del Rio may not request disbursements of funds under this Agreement until the funds are needed for payment of eligible costs and all applicable Conditions Precedent are satisfied. The amount of each request shall be limited to the amount needed to reimburse Vista Del Rio for Vista Del Rio's actual expenditures, as described in Article 6, et seq. 11.15 Eligible Costs. Vista Del Rio shall use HOME Program funds only to pay costs defined as "eligible costs" pursuant to 24 CFR 92.206. 26 DOCSOC/ 1475221 v5/200272 -0004 8OB -39 11. 16 Records and Reports. Vista Del Rio shall maintain and from time to time submit to City or Agency such records, reports and information as the Executive Directors may reasonably require in order to permit City and Agency to meet the record keeping and reporting requirements required of it pursuant to 24 CFR 92.508. 11.17 Reserved. 11.18 Conflict of Interest. Vista Del Rio 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. 11.19 Monitoring. Vista Del Rio shall allow the City to conduct annual inspections of the HOME Units on the Property as required by the Program after the date of construction completion, with reasonable notice. Vista Del Rio shall cure any defects or deficiencies found by the City while conducting such inspections within thirty (30) days of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. Health and Safety Code section 33418 requires that the Agency monitor, on an ongoing basis, any affordable housing. 11.20 Recertification of Tenant Income. (A) Vista Del Rio shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis, in accordance with HOME regulations and guidelines. Every fifth (5th) year, Vista Del Rio 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 non - compliance is corrected. 11.21 Other HOME Program Requirements. Vista Del Rio shall comply with all other applicable requirements of the HOME Program, the Section 8 Requirements, and the CRL. 11.22 Controlling Covenants. If there is a discrepancy between State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance. Vista Del Rio shall, at its sole cost and expense, maintain or cause to be maintained the interior and exterior of the Project and all 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 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 27 DOCSOC /1475221 v5/200272 -0004 8OB -40 condominium ownership. If at any time Vista Del Rio fails to maintain the Project or the Property in accordance with this Agreement and such condition is not corrected within five (5) Business Days after written notice from City or Agency with respect to graffiti, debris, and waste material, or thirty (30) days after written notice from City or Agency with respect to general maintenance, landscaping and building improvements, then City and Agency, in addition to whatever remedy they 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 Agency and /or costs of such cure, including a reasonable administrative charge, which amount shall be promptly paid by Vista Del Rio to City or Agency, as applicable, 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 Construction Loan and the Senior Loan approved pursuant to the terms of this Agreement. The City and /or Agency shall inspect the Property annually after the date of issuance of the Release of Construction Covenants as described in Section 310 of the DDA and Vista Del Rio shall cooperate with the City and Agency to make the Property and all Units thereon available for such inspection. 12. 1.1 Alterations and Repair. Vista Del Rio shall not remove, demolish or materially alter any Improvement without 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. 12.2 Compliance with Laws. Vista Del Rio shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the obtaining of Governmental Authority approvals), all Governmental Authority approvals, all rights of third parties, and all Governmental Requirements, that are applicable or relate to Vista Del Rio, the Property, or Vista Del Rio's business thereon. 12.3 Taxes and Impositions. Vista Del Rio 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 or Agency (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, Vista Del Rio may pay any Imposition in installments (together with any accrued interest). 12.3.1 Right to Contest. Vista Del Rio 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) Vista Del Rio has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair City and Agency's interests under the Loan Documents, and (c) Vista Del Rio has furnished City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 28 DOC SOC/ 1475221 v5/200272 -0004 �;Tj 12.3.2 Evidence of Payment. Upon demand by City or Agency from time to time, Vista Del Rio shall deliver to City or Agency, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. 12.3.3 Books and Records. Vista Del Rio shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, in accordance with 24 CFR 92.508. 12.4 [Intentionally omittedl 12.5 Proiect Operating Budget. Prior to the Closing, and annually thereafter not later than 60 days prior to the beginning of the next Calendar Year, Vista Del Rio shall submit a projected operating budget and cash flow ( "Operating Budget ") to the Executive Directors. The Operating Budget and cash flow shall be in a form that is reasonably acceptable to the Executive Directors. Vista Del Rio must promptly deposit all revenue received with respect to the Project directly into a segregated, interest - bearing depository account established exclusively for the Project ( "Project Operating Account "). Withdrawals from the Project Operating Account may be made only in accordance with the provisions of this Agreement and the Operating Budget approved annually by the Executive Directors, as it may be revised from time to time with City and Agency approval. Vista Del Rio may make withdrawals from the Project Operating Account solely for the payment of Project expenses and Project fees included in the approved Operating Budget. Withdrawals from the Project Operating Account for other purposes may be made only with the prior written approval of the Executive Directors. Further, Vista Del Rio shall obtain the prior written approval of the Executive Directors for any expenditure from the Project Operating Account that exceeds by ten percent (10 %) or more the amount set forth for the applicable line item in the Operating Budget and /or for any expenditure that would, cumulatively with all prior expenditures in the applicable year, exceed the total approved annual Operating Budget for the Project by ten percent (10 %) or more. 12.6 Replacement Reserve Account. Vista Del Rio 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 Release of Construction Covenants is filed. Vista Del Rio must make monthly deposits from project income into the Replacement Reserve in accordance with Vista Del Rio's Budget, as amended from time to time. Vista Del Rio 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. Vista Del Rio may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the City and Agency. 13. NONDISCRIMINATION COVENANTS 13.1 Obligation to Refrain from Discrimination. Vista Del Rio 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 Vista Del Rio 29 DOCSOC/ 1475221 v5/200272 -0004 8OB -42 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. 13.2 Nondiscrimination in Employment. Vista Del Rio 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. 13.3 Statutory Nondiscrimination Covenants. Except to the extent preferences are permitted or required by this Agreement, Vista Del Rio 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. Vista Del Rio 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. Vista Del Rio shall also comply 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. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 13.3.1 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." 30 DOCSOC/ 1475221 v5/200272 -0004 x.11 : a 13.3.2 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." 13.3.3 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." 13.4 In Affordable Housing Restrictions. The foregoing covenants shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (c) remain effective for the Term hereof. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the City, Vista Del Rio has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14.2 Compliance with Environmental Laws. Vista Del Rio shall (a) comply with all Environmental Laws and environmental permits applicable to the Construction and/or 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, (d) obtain and renew all environmental permits required for ownership or use of the Property, and (e) comply with any and all Governmental Requirements relating to Hazardous Materials with respect to the Construction and/or operation of the Project. 14.3 Presence of Hazardous Materials. Vista Del Rio 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. 31 DOCSOC/ 1475221 v5/200272 -0004 �16TI i 14.4 Notice of Environmental Matters. Vista Del Rio shall immediately advise City in writing of any of the following: (a) any pending or threatened environmental claim against Vista Del Rio or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable Environmental Law, (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any Environmental Law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Vista Del Rio. 14.5 Environmental Indemnification by the Vista Del Rio. Vista Del Rio hereby agrees, at Vista Del Rio's sole expense, to 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 Vista Del Rio's ownership of the Property, on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Property by Vista Del Rio during the period of the Vista Del Rio'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 Vista Del Rio'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. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Vista Del Rio under the Notes or Deeds of Trust remain outstanding, the following provisions shall apply, except to the extent that Executive Directors otherwise consent in writing: 15.1 Existence. Vista Del Rio's managing general partner shall maintain its existence in good standing under the laws of the State of California and Vista Del Rio shall provide documentation of such status annually to the City. 15.2 Protection of Lien. Vista Del Rio shall maintain the lien of the Deeds of Trust as a valid second and third priority deed of trust on the Property and take all actions, and execute and deliver to City and Agency all documents, reasonably required by the Executive Directors from time to time in connection therewith. 15.3 Notice of Certain Matters. Vista Del Rio shall give notice to City, within ten (10) days of Vista Del Rio's learning thereof, of each of the following: (a) any filed litigation or claim affecting or relating to the Project or Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Vista Del Rio or any general partner to liability in excess of $5,000, whether covered by insurance or not; 32 DOCSOC /1475221 v5/200272 -0004 �;,i : (b) any dispute between Vista Del Rio and a Governmental Authority relating to the Property /Project, the adverse determination of which might materially affect the Property/Project; (c) any change in Vista Del Rio'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 Vista Del Rio or any other party under any Senior Loan document, or the receipt by Vista Del Rio 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 Vista del Rio. 15.4 Further Assurances. Vista Del Rio shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to City all documents, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents; to protect and further the validity, priority and enforceability of the Deeds of Trust; to subject to the Deeds of Trust any property intended by the terms of any Loan Document(s) to be covered by the Deeds of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. 15.5 Annual Audited Financial Statements. Vista Del Rio shall deliver to City, within one hundred twenty (120) days after the end of each Calendar Year, (a) an audited financial statement prepared by a certified public accountant for Vista Del Rio as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Vista Del Rio and for Vista Del Rio's operations in connection with the Property /Project 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 Vista Del Rio's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, (ii) fairly represent Vista Del Rio's financial condition, (iii) show all material liabilities, direct and contingent, and, (iv) fairly represent the results of Vista Del Rio's operations. Vista Del Rio shall also provide the City with any other annual audit reports issued by or for the benefit of other monitoring agencies. 15.6 Audits and Access to Records. Vista Del Rio agrees that City, Agency, HUD, 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 Vista Del Rio which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Vista Del Rio will maintain all books and records pertaining to this 33 DOCSOC/ 1475221 v5/200272 -0004 6111- A i Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Vista Del Rio's activities, for a period of not less than five (5) years after the affordability or recapture period ends. 15.7 Termite Inspection Report. Vista Del Rio shall deliver a termite report pertaining to the Property /Project to the City every fifth (5th) year beginning January 2013. 16. OTHER NEGATIVE COVENANTS While any obligation of Vista Del Rio under the Notes or Deeds of Trust remains outstanding, the following provisions shall apply, except to the extent that Executive Directors otherwise consent in writing: 16.1 Default on Senior Loan. Vista Del Rio shall not default on any of the Senior Loan Documents, provided however, that Vista Del Rio shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Transfers of Interest in Property or Agreement. 16.2.1 Prohibition. The qualifications and identity of Vista Del Rio 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 Vista Del Rio. Therefore, 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 Vista Del Rio shall acquire any rights or power under this Agreement, nor shall Vista Del Rio 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 (collectively, "Transfer ") without prior written approval of the Agency and City, except as expressly set forth herein. Any proposed total or partial Transfer without Agency and City approval shall constitute a Default pursuant to Article 20, et seq., hereof. 16.2.2 Permitted Transfers. Notwithstanding any other provision of this Agreement to the contrary, Agency and City approval of a Transfer shall not be required in connection with any of the following: (a) Any Transfer to an entity or entities in which Vista Del Rio directly or indirectly retains a minimum of fifty -one percent (51 %) of the 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. (c) Any requested assignment for financing purposes (subject to such financing being considered and approved by the Agency pursuant to Section 311 of the DDA), including the grant 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 Vista Del Rio upon the expiration of the fifteen (15) year tax credit compliance period applicable to the Project. 34 DOCSOC/ 1475221 v5/200272 -0004 8OB -47 (e) A Transfer of a General Partner's interest in Vista Del Rio when made in connection with the exercise by the Limited Partner of its rights upon a default by a General Partner under the Partnership Agreement or upon a General Partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the General Partner with a reasonable period and thereafter diligently proceeds to complete such substitution. (f) Any Transfer of the Property to the Managing General Partner pursuant to the right of first refusal or to the General Partners pursuant to the purchase option, as provided for in the Partnership Agreement. (g) Any sale, transfer or other disposition of an interest in the Limited Partner. (h) Any sale, transfer or other disposition of the Limited Partner's interest in Vista Del Rio as allowed by the Partnership Agreement. In the event of a Transfer by Vista Del Rio described above not requiring the City's or Agency's prior approval, Vista Del Rio 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 in writing through an assignment and assumption agreement all of Vista Del Rio's obligations set forth in this Agreement. Upon the satisfaction of said obligations and the Transfer, the assignor shall be released from all obligations to the Agency and City hereunder (except obligations to indemnify the Agency and City pursuant to Section 14.5 and Article 18, et seq., of this Agreement). 16.2.3 Agency /City Consideration of Requested Transfer. Agency and City agree that they will not unreasonably withhold, condition or delay approval of a request for approval of a Transfer made pursuant to this Section 16.2, provided Vista Del Rio 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 16.2 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 16.2 applies, which the Agency /City determines does not possess equal or better qualifications than 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 fifteen (15) days after the receipt of Vista Del Rio's written notice requesting Agency approval of an assignment or transfer pursuant to this Section 16.2, 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, Vista Del Rio shall promptly furnish to the Agency /City such further information as may be reasonably requested and the Agency and City shall approve or disapprove the requested Transfer within fifteen (15) days after receipt of all such requested information. 35 DOCSOC/ 1475221 v5/200272 -0004 �011 : , 61 16.2.4 Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon Vista Del Rio and its permitted successors and assigns. Whenever the term "Vista Del Rio" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 16.2.5 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 Vista Del Rio. 17. [RESERVED] 18. INDEMNIFICATION 18.1 Nonliability of Agency and City. Vista Del Rio acknowledges and agrees that: (a) The relationship between Vista Del Rio, Agency, and City is and shall remain solely that of borrower and lender, neither City nor Agency undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or to inform Vista Del Rio 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 Vista Del Rio shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Vista Del Rio by City or Agency in connection with such matters is solely for the protection of City and Agency and that neither Vista Del Rio 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 with Vista Del Rio and City does not intend to ever assume any such status; (ii) City's and Agency's activities in connection with the Loans 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 neither City nor Agency intends to ever assume any responsibility to any person for the quality or safety of the Property or Project; and (iii) neither City nor Agency shall be deemed responsible for or a participant in any acts, omissions or decisions of Vista Del Rio; (c) Neither City nor Agency shall 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 or Project, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Vista Del Rio or any of Vista Del Rio's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or Project or any fire or other casualty or hazard thereon; and (d) By accepting or approving anything required to be performed or given to City or Agency under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, neither City nor Agency shall be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City or Agency to anyone. 36 DOCSOC /1475221 v5/200272 -0004 8OB -49 18.2 Indemnity. Vista Del Rio shall defend (by counsel satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the making of the Loans; (iii) a claim, demand or cause of action that any person has or asserts against Vista Del Rio; (iv) any act or omission of Vista Del Rio, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property or Project; or (vi) the ownership, occupancy or use of the Property or Project. Notwithstanding the foregoing, Vista Del Rio shall not be obligated to indemnify City or Agency with respect to the consequences of any act of gross negligence or willful misconduct of City or Agency or any breach by the City or Agency of any Loan Document. Vista Del Rio's obligations under this Section shall survive the cancellation of the Notes, release and reconveyance of the Deeds of Trust, issuance of the Release of Construction Covenants, and termination of this Agreement. 18.2.1 Notwithstanding the foregoing, neither Vista Del Rio, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result as the repayment of principal and /or interest under the Loans. 18.3 Reimbursement of City and Agency. In the event of Default, Vista Del Rio shall reimburse City and /or Agency immediately upon written demand for all costs reasonably incurred by City and /or Agency (including the reasonable fees and expenses of attorneys, expert witnesses, accountants, appraisers and other consultants, whether the same are independent contractors or employees of City) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City and Agency are indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty (20) days after City or Agency gives written demand to Vista Del Rio and shall be secured by the Deeds of Trust. Such reimbursement obligations shall survive the cancellation of the Notes, release and reconveyance of the Deeds of Trust, issuance of a Release of Construction Covenants, and termination of this Agreement. 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Vista Del Rio under the Loan Documents remains outstanding, Vista Del Rio shall maintain at Vista Del Rio's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: [Subject to review 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 until 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; which said insurance shall expressly include damage or loss by flood or storm; 37 DOCSOC/ 1475221 v5/200272 -0004 8OB -50 (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; which said insurance shall expressly include damage or loss by flood or storm; (d) general liability insurance in amounts reasonably required by City from time to time, and in no event less than $5,000,000 for "single" occurrence; (e) public liability insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000 for "single" occurrence; (f) property damage insurance in amounts reasonable required by City from time to time, and in no event less than $1,000,000. (g) 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 City and Agency. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" (Form 438BFU) in form and substance satisfactory to City, showing the Agency and the City as loss payees. The Agency and the City shall be named as additional insured(s) in the policies required under subparagraphs (d), (e) and (f). Certificates of insurance for the above policies (and/or original policies, if required by 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, Vista Del Rio shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to City Attorney and /or City Risk Manager. 19.2 City Attorney and /or City Risk Manner May Modify. The City Attorney and /or City Risk Manager may modify the type and amounts of insurance (including reasonable increases in policy limits) required pursuant to this Section. 19.3 Claims and Proceedings. Vista Del Rio shall give City and Agency immediate notice of any material casualty to any portion of the Property/Project, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi - public use of any portion of the Property (collectively, "Condemnation "), and shall provide City and Agency with copies of all documents which pertain to any such casualty or Condemnation. Vista Del Rio shall take all action reasonably required by the Executive Directors in connection therewith to protect the interests of Vista Del Rio, City, and Agency, and City and Agency 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. Vista Del Rio shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without the prior written approval of the Executive Directors, which approval shall not be unreasonably withheld or delayed. 19.4 Delivery of Proceeds to City / Agency. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty 38 DOCSOC/ 1475221 v5/200272 -0004 8OB -51 insurance policy described herein are paid to Vista Del Rio, Vista Del Rio shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the Agency and City immediately upon receipt. 19.5 Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds ") under any casualty insurance policy described in this Agreement shall be disbursed to Vista Del Rio as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions ") within ninety (90) days (unless extended by mutual agreement of Vista Del Rio, City, and Agency) following the occurrence of the damage for which the Proceeds are collected: (a) Vista Del Rio shall demonstrate to the Executive Directors' reasonable satisfaction that the Proceeds (together with amounts deposited by Vista Del Rio 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 the Executive Directors, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City and Agency of (i) plans and specifications reasonably satisfactory to City and Agency, and (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to City and Agency. (b) To the extent that the Proceeds are insufficient to accomplish the restoration required above, Vista Del Rio shall deliver to City and Agency funds (the "Shortfall Funds ") in the amount of such shortfall, which funds shall be assigned to City and Agency as security for Vista Del Rio's obligation hereunder and held and disbursed in the same manner as the Proceeds. (c) Vista Del Rio shall execute such documents as the Executive Directors require to evidence and secure Vista Del Rio's obligation to use all amounts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Vista Del Rio shall be held by Agency/ City and disbursed in accordance with the then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Vista Del Rio up to the amount of any Shortfall Funds deposited by Vista Del Rio, and any other amounts remaining shall either be paid to Vista Del Rio or applied by City and Agency against any obligations to City or Agency that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Vista Del Rio fails to fulfill the Restoration Conditions within ninety (90) days (unless extended pursuant to Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by City and Agency against any obligations to City or Agency that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City and Agency in their sole and absolute discretion. 19.8 Restoration. Nothing in this Article 19 shall be construed to excuse Vista Del Rio 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. 39 DOCSOC /1475221 v5/200272 -0004 19.9 Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Vista Del Rio 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 Vista Del Rio in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation "). Subject to any superior rights of Senior Lender, Vista Del Rio shall deliver such remaining Compensation to City and Agency immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of the Executive Directors, renders or is likely to render the Property not economically viable or if, in the Executive Directors' reasonable judgment Vista Del Rio's security is otherwise impaired, City and Agency may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to City and Agency shall be paid to Vista Del Rio or Vista Del Rio's assignee. Neither City nor Agency shall have any obligation to take any action in connection with any actual or threatened condemnation or other proceeding. 19.9.1 Notwithstanding the foregoing, as long as the value of City's and Agency's liens are not impaired, any condemnation proceeds may be used by Vista Del Rio for repair and /or restoration of the project. 19.10 Waiver of Subrogation. Vista Del Rio 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 Vista Del Rio 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. Vista Del Rio shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. 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 therefor, shall constitute an Event of Default by Vista Del Rio under this Agreement: (a) Vista Del Rio fails to make any payment of principal or interest under the Notes when due, and such failure is not cured within fifteen (15) Business Days after Vista Del Rio's receipt of written notice that such payment was not received when due; (b) Vista Del Rio 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 Vista Del Rio's receipt of written notice that such obligation was not performed when due; 40 DOCSOC /1475221 v5/200272 -0004 (c) Vista Del Rio 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 Vista Del Rio'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 Vista Del Rio (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) Vista Del Rio is in default of the Disposition and Development Agreement. (f) The Property is materially damaged or destroyed by fire or other casualty unless Vista Del Rio fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within ninety (90) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; (g) 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 Vista Del Rio's reasonable control), provided that the same do not, in the aggregate and in the City's reasonable judgment, threaten to delay the completion of the construction beyond the required completion date set forth in this Agreement and the Schedule of Performance; (h) Vista Del Rio 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; (i) [intentionally omitted]; 0) Vista Del Rio is dissolved, liquidated or terminated, or all or substantially all of the assets of Vista Del Rio are sold or otherwise transferred without the Executive Directors' prior written consent; (k) Vista Del Rio 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 Vista Del Rio 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 Vista Del Rio and the appointment continues undischarged or unstayed for ninety (90) days; or Vista Del Rio 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 Vista Del Rio 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 Vista Del Rio and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or 41 DOCSOC/ 1475221 v5/200272 -0004 8OB -54 (1) (i) any of the Senior Loan documents is revoked or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the Executive Directors' prior written consent, or (ii) Vista Del Rio 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 City's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by the Limited Partner shall be deemed to be a cure by Vista Del Rio and shall be accepted or rejected on the same basis as if made or tendered by Vista Del Rio. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, City or Agency may, at their respective option and in their absolute discretion, do any or all of the following: (a) By written notice to Vista Del Rio, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 (e) shall automatically, without notice or other action on the part of City or Agency, cause all such amounts to be immediately due and payable; (b) In its own right or by a court- appointed receiver, take possession of the Property /Project, 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 or Agency elects in their sole and absolute discretion; and, (d) Suspend or terminate the award of HOME Program funds, if Vista Del Rio fails to comply with any term or condition of such award. (e) Suspend or terminate the award of the tax increment funds or Agency Loan proceeds if Vista Del Rio fails to comply with any term of that award. (f) Authority may suspend or terminate the award of any Project Based Section 8 assistance if Vista Del Rio fails to comply with any term or condition of that award. 20.3 Cumulative Remedies: No Waiver. City's and Agency's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City or Agency 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 City or Agency to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's or Agency's consent to or approval of any act by Vista Del Rio requiring further consent or approval shall not be deemed to waive or render unnecessary City's or Agency's consent to or approval of any subsequent act. The Agency or the City's acceptance of the 42 DO C S OC/ 1475221 v 5/200272 -0004 8OB -55 late performance of any obligation shall not constitute a waiver by City or Agency of the right to require prompt performance of all further obligations; City's or Agency's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's or Agency's acceptance of any partial performance shall not constitute a waiver by City or Agency of any rights. Notwithstanding anything to the contrary contained in the Loan Documents, the City and the Agency hereby agree that any cure of any default made or tendered by the Limited Partner shall be deemed to be a cure by Vista Del Rio and shall be accepted or rejected on the same basis as if made or tendered by Vista Del Rio. Copies of all notices which are sent to Vista Del Rio under the terms of the Loan Documents shall also be sent to the Limited Partner at an address to be provided in writing to the City and the Agency by the Limited Partner. 21. MISCELLANEOUS 21.1 Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City or Agency to Vista Del Rio, or any other claim by Vista Del Rio against City or Agency, in connection with the Loans or otherwise, Vista Del Rio hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Vista Del Rio'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 Vista Del Rio of any of its obligations under the Loan Documents. 21.2 Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: If to Vista Del Rio: Vista Del Rio Housing Partners, L.P. c/o Foundation for Affordable Housing V, Inc. 30950 Rancho Viejo Road, Suite 100 San Juan Capistrano, CA 92675 Attention: Deborrah Willard Telephone: (949) 443 -9101 Email: deb@ffah.org If to City /Agency: City of Santa Ana Executive Director (CDA/RDA) 20 Civic Center Plaza (M -37) P. O. Box 1988 Santa Ana, California 92702 With a copy to: City 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 43 DOCSOC/ 1475221 v5/200272 -0004 three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non - receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loans described herein and have been or will be relied on by City notwithstanding any investigation made by either party. 21.4 (Intentionally Omittedl. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Vista Del Rio, Agency, and City and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Vista Del Rio shall not assign any of its rights or obligations under any Loan Document without the prior written consent of the Executive Directors, which consent may be withheld in the Executive Directors' sole and absolute discretion. Any such assignment without such consent shall, at the Executive Directors' option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the Agency, City and Vista Del Rio with respect to the Loans and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Vista Del Rio irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Vista Del Rio also waives any objection regarding personal or in rem jurisdiction or venue. 21.8 Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9 Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents. 2 1. 10 Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other Project Document, this Agreement, unless otherwise expressly provided, shall prevail; however, 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. 44 DOCSOC/ 1475221 v5/200272 -0004 21.11 Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 21.12 Conflict of Interest. No member, official or employee of the Agency or the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 21.13 Warranty Against Payment of Consideration. Vista Del Rio warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 21.14 Nonliability of City and Agency Officials and Employees. No member, official or employee of City or Agency shall be personally liable to Vista Del Rio, or any successor in interest, in the event of any default or breach by City or Agency or for any amount which may become due to Vista Del Rio or successor, or on any obligation under the terms of this Agreement. 21.15 Plans and Data. Should Vista Del Rio not proceed with the work and construction of the Property, and upon termination of this Agreement for any reason, Vista Del Rio shall deliver to City any and all plans and data concerning the Property /Project, and City or any person or entity designated by City shall have the right to use such plans and data without compensation to Vista Del Rio. Such right of City shall be subject to any right of the preparer of the plans to their use. 21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the Agency and City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 21.17 Subsequent Approvals. Except where otherwise indicated, all subsequent approvals identified in this Agreement, other than approvals by the City Council of the City of Santa Ana, shall not be unreasonably withheld, delayed or conditioned. 21.18 City, Agency and Authority Approvals and Actions. The City, Agency and Authority shall maintain authority of this Agreement and the authority to implement this Agreement through the Executive Directors. The Executive Directors shall have the authority to make approvals, issue interpretations, waive provisions, and /or enter into amendments of this Agreement on behalf of the City, Agency and Authority 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 City, Agency or Authority as specified herein, and such approvals, interpretations, 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 City Council, Agency Board and Authority Board. (Signatures appear on following pages) 45 DOCSOC/ 1475221 v5/200272 -0004 8OB -58 IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Maria D. Huizar, Secretary APPROVED AS TO FORM itz Lisa E. Storck Assistant Counsel ATTEST: Maria D. Huizar, Cleric of the Council APPROVED AS TO FORM IN Lisa E. Storck Assistant City Attorney AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic Nancy T. Edwards, Interim Executive Director CITY: CITY OF SANTA ANA, a municipal corporation IM Dave N. Ream, City Manager DOCSOC /1475221 v5/200272 -0004 8OB -59 VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership By: Foundation for Affordable Housing V, Inc. a California nonprofit public benefit corporation, its Managing General Partner Deborrah A. Willard, President 47 DOCSOC/ 1475221 v5/200272 -0004 �:11 = lfj EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Real property in the City of Santa Ana, County of Orange, State of California, described as follows: IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE NORTHEAST QUARTER OF SECTION 2, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE RANCHO LAS BOLSAS, AS PER MAP RECORDED IN BOOK 51, PAGE 12 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY, AS DESCRIBED IN A DEED TO THE NEWBERT PROTECTION DISTRICT, RECORDED OCTOBER 16, 1919 IN BOOK 339 PAGE 382 OF DEEDS IN THE OFFICE OF SAID COUNTY RECORDER MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHEASTERLY CORNER OF LOT 38 OF TRACT NO. 2887 AS SHOWN ON A MAP FILED IN BOOK 117, PAGES 28 THROUGH 30, INCLUSIVE, OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY, BEING ALSO THE WESTERLY CORNER OF THAT CERTAIN STRIP OF LAND DEEDED TO THE CITY OF SANTA ANA ON MAY 14, 2002 BY INSTRUMENT NO. 20020400664 OF OFFICIAL RECORDS OF SAID COUNTY, THE SOUTHERLY LINE OF SAID STRIP BEING A TANGENT CURVE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 867.00 FEET, THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 100 23'48", AN ARC LENGTH OF 157.32 FEET TO THE END OF SAID CURVE; THENCE SOUTH 69° 55' 32" EAST A DISTANCE OF 77.35 FEET ALONG THE SOUTHERLY LINE OF SAID STRIP; THENCE DEPARTING SAID SOUTHERLY LINE ON A COURSE BEARING SOUTH 200 04'28" WEST A DISTANCE OF 7.00 FEET; THENCE NORTH 69° 55' 32" WEST A DISTANCE OF 28.00 FEET; THENCE SOUTH 62° 04' 28" WEST A DISTANCE OF 13.38 FEET; THENCE SOUTH 140 04' 28" WEST A DISTANCE OF 36.00 FEET; THENCE SOUTH 40° 01' 11" EAST A DISTANCE OF 27.44 FEET; THENCE SOUTH 25° 35' 43" EAST A DISTANCE OF 29.37 FEET TO THE BEGINNING OF A NON - TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIAL BEARING OF SOUTH 390 52'08" WEST AND A RADIUS OF 42.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 500 45'00" AN ARC LENGTH OF 37.20 FEET TO THE END OF SAID CURVE; THENCE ALONG A LINE TANGENT TO SAID CURVE SOUTH 000 37'08" WEST A DISTANCE OF 140.00 FEET; THENCE SOUTH 89° 22' 52" EAST A DISTANCE OF 14.00 FEET TO A POINT ON THE NORTHWESTERLY LINE OF "PARCEL 1" OF A DOCUMENT RECORDED IN BOOK 9034, PAGE 417, OFFICIAL RECORDS OF SAID COUNTY; THENCE SOUTH 26° 53' 03" WEST A DISTANCE OF 534.66 FEET ALONG THE NORTHWESTERLY LINE OF SAID "PARCEL 1" TO A POINT ON THE EASTERLY LINE OF SAID TRACT 2887; THENCE NORTH 00 37'08" EAST ALONG SAID EASTERLY LINE A DISTANCE OF 802.28 FEET TO THE POINT OF BEGINNING. The area of the described land consisting of 2.740 acres, more or less. DOCSOC/ 1475221 v5/200272 -0004 A -1 �:11 = ei EXHIBIT B AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza (M -37) Santa Ana, CA 92702 Attn: Executive Director This document is exempt from payment of a recording fee pursuant to Government Code Sections 27383 and 6103. NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (1600 West Memory Lane, Santa Ana, CA) (Multi - Family Rental Units) NOTICE IS HEREBY GIVEN, that the Community Redevelopment Agency of the City of Santa Ana ( "Agency "), to carry out certain obligations under the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000 et seq.) and the Redevelopment Plan for the Merged Redevelopment Project Areas, has required Vista Del Rio Housing Partners, L.P., a California limited partnership ( "Owner "), to enter into certain affordability covenants and restrictions entitled Affordability Restrictions on Transfer of Property ( "Restrictions "). The Restrictions shall be recorded with the Orange County Recorder concurrently with this Notice, with reference to certain real property located at 1600 West Memory Lane, Santa Ana, CA ( "Property "), designated as Assessor's Parcel Nos. [ I and more particularly described in Attachment No. l, attached hereto and incorporated herein by reference. The affordability covenants and restrictions contained in the Restrictions include without limitation and as further described in the Restrictions: The Project consists of a forty -one (41) unit rental project with fifteen (15) studio units, twenty -one (21) one - bedroom units, and five (5) two - bedroom units, all but one unit of which will B -I DOCSOC/ 1475221 v5/200272 -0004 be restricted to rental and occupancy by Extremely Low Income or Very Low Income households paying an Affordable Rent, determined in accordance with the lower and more restrictive of the regulations applicable to federal 9% low and moderate income tax credits and the California Community Redevelopment Law, Health and Safety Code Section 33000, et seq. (and, with respect to four (4) of the studio units, four (4) of the one - bedroom units, and three (3) of the two - bedroom units, which shall be fixed HOME Units, the regulations implementing the HOME Investments Partnership Program ( "HOME Program ") set forth at 24 CFR §92.1, et seq.) Six (6) of the studio units, ten (10) of the one - bedroom units and four (4) of the two - bedroom units are to be restricted to Extremely Low Income households, and all but one (1) of the remaining units at the Project shall be restricted to Very Low Income households for a period of not fewer than 55 years (15 years with respect to the HOME Program requirements). This Notice of Affordability Restrictions on Transfer of Property is being recorded for the purpose of providing notice only and it in no way modifies the provisions of the Restrictions. In the event of any conflict between this Notice and the Restrictions, the terms of the Restrictions shall prevail. The Restrictions have been recorded concurrently herewith and shall remain in effect for not fewer than fifty -five (55) years. This Notice is being recorded in the Official Records of Orange County, California by the Agency in compliance with Health and Safety Code Section 33334.3(f)(3)(B), as amended, and shall be indexed against the Agency and the Owner. [Signatures appear on following pages.] B -2 DOCSOC/ 1475221 v5/200272 -0004 x;11 : :6a IN WITNESS WHEREOF, the parties hereto have caused this Notice of Affordability Restrictions on Transfer of Property to be executed as of the date set forth at the beginning of this Notice. AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA a public body, corporate and politic Nancy T. Edwards, Interim Executive Director ATTEST: Maria D. Huizar Agency Recording Secretary APPROVED AS TO FORM: Lisa E. Storck, Assistant Counsel [Signatures continue on following page.] B -3 DOCSOC/ 1475221 v5/200272 -0004 �i11 i • [Signatures continue from previous page.] OWNER: VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership By: Foundation for Affordable Housing V, Inc. a California nonprofit public benefit corporation, its Managing General Partner By: Deborrah A. Willard, President B -4 DOCSOC /1475221 v5/200272 -0004 8OB -65 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Santa Ana Community Development Agency Housing Department M -37 20 Civic Center Plaza, 3rd Floor P.O. Box 1988 Santa Ana, California 92702 SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (1600 West Memory Lane, Santa Ana, CA) These AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions ") are entered into as of the day of , 2011, by and among and Vista Del Rio Housing Partners, L.P., a California limited partnership (referred to herein as the "Vista Del Rid'), the City of Santa Ana, a charter city (the "City "), and the Community Redevelopment Agency of the City of Santa Ana, a public body, corporate and politic (the "Agency "). RECITALS: A. Vista Del Rio is the owner of that certain real property located at 1600 West Memory Lane (the "Property ") located in the City of Santa Ana more particularly described in Exhibit A, which is attached hereto and incorporated herein by this reference. B. For the purpose of providing forty -one (4 1) residential rental units of housing that will be affordable to Extremely Low Income and Very Low Income households (collectively, "Assisted Units "), Vista Del Rio and the City have entered into that certain Loan Agreement, dated and recorded against the Property concurrently herewith (the "Agreement ") to which these Restrictions are attached as Exhibit B which, along with all of its attachments, is incorporated herein by this reference (any capitalized term that is not otherwise defined in these Restrictions shall have the meaning ascribed to such term in the Agreement). In addition, the Agency, Santa Ana Housing Authority and Vista Del Rio have entered into that certain Disposition and Development Agreement dated July 20, 2009, the First Amendment to the Disposition and Development Agreement dated March 15, 2010, the Second Amendment to the Disposition and Development Agreement dated December 20, 2010, and the Third Amendment to the Disposition and Development Agreement dated (the "DDA "), which provides for the acquisition of the Property and construction and operation of the Project as Affordable Housing by Vista Del Rio. C. The Agreement provides, among other things, for the use of the Property for affordable housing with the Assisted Units being restricted to being rented to Extremely Low Income and Very Low Income households. B -5 DOCSOC /1475221 v5/200272 -0004 �L:ll = l` D. The Agreement contains certain provisions relating to the use, operation, management and maintenance of the Property. NOW, THEREFORE, CITY, AGENCY, AND VISTA DEL RIO COVENANT AND AGREE AS FOLLOWS: 1. COVENANT TO OPERATE AFFORDABLE HOUSING Vista Del Rio covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property or any part thereof) that Vista Del Rio, such successors, and such assigns shall use the Property exclusively to provide affordable housing for Extremely Low Income and Very Low Income households, as provided in these Restrictions, the Agreement, and the DDA. The terms, provisions, and covenants set forth in the Agreement and the DDA are hereby incorporated herein by this reference as if set forth in full herein. 2. RESERVED. 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. A. Vista Del Rio agrees and covenants, which covenants shall run with the land and bind Vista Del Rio, its successors, its assign and every successor in interest to the Property that Vista Del Rio will make all Assisted Units on the Property available solely to Extremely Low Income and Very Low Income households at Affordable Rents. The HOME Regulations applicable to the eleven (11) HOME Units shall be enforced during the entire HOME Compliance Period. Upon expiration of the HOME Compliance Period, the City and Agency will enforce affordability of said Assisted Units with the same income and rent restrictions as the other Assisted Units, pursuant to the requirements of Section 50052.5 of the Health and Safety Code and the CRL. Vista Del Rio further covenants and agrees that the Property shall be developed, operated, managed and maintained in accordance with Specific Development No. 83; Amendment Application 08 -11, as approved by the City of Santa Ana Planning and Building Agency and by the Santa Ana City Council pursuant to Ordinance No. NS -2790 of the City of Santa Ana, adopted August 3, 2009. B. The Project shall consist of forty income restricted Assisted Units (and one unrestricted manager's unit). There shall be eleven (11) HOME Units. The eleven HOME Units will be fixed units and shall be distributed throughout the complex with comparable amenities to the other Assisted Units. C. At initial lease up, all households selected to rent and occupy the HOME Units shall be Very Low Income households and all households selected to rent and occupy the remaining Assisted Units shall be Extremely Low Income and Very Low Income households, in accordance with the schedule set forth in Section 3.2 below. All rental increases shall be in conformance with federal and state law and approved by the Executive Directors. D. The rent charged for the on -site property manager's unit shall not be restricted. B -6 DOCSOC /1475221 v5/200272 -0004 �6'i= E. Affordable Rents charged to tenants shall be governed by California Health and Safety Code Sections 50052.5, 50053(b)(1), and 50053(b)(2), and as provided in the HOME Regulations 24 CFR section 92.2, whichever is less. 3.2 Affordable Gross Starting Rents (Less Reasonable Utilitv Allowance). Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of Construction in accordance with any changes in allowable rent and income tables as published by HUD and the State of California, Department of Housing and Community Development. A. Agency and HOME Units. Agency, City, and Vista Del Rio agree that the breakdown of unit affordability for the Assisted Units shall be as follows, under this Agreement: The rents charged at the Project must comply with the lowest and most restrictive of the following standards: 1. The calculation methodology defined in (i) Section 50053(b)(1) for Extremely Low Income Households, or (ii) Section 50053(b)(2) for Very Low Income Households; 2. The rents published for Low Income Housing Tax Credit (Tax Credit) projects by the California Tax Credit Allocation Committee (TCAC); and HUD. 3. With respect to the HOME Units, the Low HOME rents published by Agency, City, and Vista Del Rio agree that effective 2010 the initial maximum gross monthly Affordable Rents and the breakdown of unit affordability for the Extremely Low Income Assisted Units shall be as follows: Studio Extremely Low Units One Bedroom Extremely Low Units Two Bedroom Extremely Low Units # of Units # of (Agency) HOME units 4 2 8 2 2 2 Max. Gross Monthly Rents* $488 $523 $627 Agency, City, and Vista Del Rio agree that effective 2010 the initial maximum gross monthly Affordable Rents and the breakdown of unit affordability for the Very Low Income Assisted Units shall be as follows: # of Units # of HOME Maw Gross (Agency) units Monthly Rents* Studio Very Low Units 7 2 $753 One Bedroom Very Low Units 8 2 $861 Two Bedroom Very Low Units 0 1 $969 *Utilities Allowances must be deducted from the Maximum Gross Monthly Affordable Rent. The applicable utilities allowances are determined periodically by the Authority. B -7 DOCSOC/ 1475221 v5/200272 -0004 �9611 _ leek Maximum Gross Monthly Rents shall be recalculated following issuance of a Release of Construction Covenants but prior to the time of initial lease -up in accordance with any changes in allowable rent and income tables as published by HUD and the State of California, and shall be as approved by the Executive Directors in writing in accordance with this Section. Such Maximum Gross Monthly Rents charged to the first tenants of the 41 units (40 Assisted Units plus manager's unit) shall constitute the Initial Rental Schedule. 3.3 Rental Vouchers. (a) In the event Vista Del Rio rents an Assisted Unit to a household holding a Portable Voucher, the rental agreement (or lease agreement, as applicable) between Vista Del Rio, as landlord, and the tenant shall expressly provide that the monthly rent charged shall be the Affordable Rent required hereunder for the Assisted Unit (not fair market rent) and that the rent collected directly from such tenant holding a portable rental voucher shall be not more than 40% of the tenant's actual gross income pursuant to the applicable voucher program regulations; i.e., the rent charged to such tenant under the rental agreement shall be the Affordable Rent chargeable hereunder and not fair market rent for the area, as would otherwise be permitted under the applicable Portable Voucher program. Thus, the subsidy payment to Vista Del Rio under any Portable Voucher shall not exceed the difference between forty percent (40 %) of the tenant's actual gross income and Affordable Rent chargeable for the applicable Assisted Unit hereunder (and under the Affordability Restrictions). (b) The parties acknowledge that Vista Del Rio and Authority intend to enter into the HAP Contract and that the Senior Lender is anticipated to underwrite a Senior Loan based in part on the Project Based Section 8 subsidy to the Project under the HAP Contract, including payments thereunder equal to the difference between 30% of each tenant household's actual gross income and the fair market rent for the area. In the event that, during the Term hereof, a new Housing Assistance Payments Contract is proposed to be entered into (or is entered into) with respect to any Assisted Units at the Project not already receiving Project Based Section 8 assistance under the HAP Contract (or those Units, after expiration of the HAP Contract), Vista Del Rio shall cause the rental agreement (or lease agreement, as applicable) for each Assisted Unit receiving Project Based Section 8 assistance pursuant to such new Housing Assistance Payments Contract (but not the HAP Contract) to provide that the monthly rent charged under such rental agreement (or lease agreement, as applicable) shall not exceed the Affordable Rent required hereunder for the Assisted Unit (not fair market rent). Thus, the subsidy payment to Vista Del Rio under any project -based rental voucher (other than with respect to the subsidy pursuant to the HAP Contract) shall not exceed the difference between thirty percent (30 %) of the tenant's actual gross income and Affordable Rent chargeable for the applicable Assisted Unit hereunder (and under the Regulatory Agreement). (c) Vista Del Rio hereby acknowledges and agrees that, upon completion of construction of the Project and leasing of the Assisted Units to Extremely Low Income and Very Low Income households pursuant to this Agreement, the DDA and the Affordability Restrictions, Vista Del Rio will have received governmental subsidies from Authority, City, Agency and TCAC (through the Tax Credits allocated to the Project) in exchange for Vista Del Rio's agreement to limit the rents charged to tenants of the Project to an Affordable Rent and Vista Del Rio further acknowledges and agrees that, except for the HAP Contract payments with respect to between 7 and 10 Assisted Units (as determined by Authority), which are part of the approved financing for the Project, acceptance of additional governmental rental subsidies resulting in total, cumulative rent payments to Vista Del Rio in excess of an Affordable Rent for any of the Assisted Units at the B -8 DOC SOC/ 1475221 v5/200272 -0004 `OOII U • J Project would constitute an unjustified windfall to Vista Del Rio at the expense of Authority and the federal and state governments. Further, with respect to the HOME Units, the HOME Regulations prohibit application of any Project Based Section 8 assistance, Portable Voucher, or other rental subsidy that, cumulatively with the rent to be paid by the tenant household, exceeds an Affordable Rent calculated pursuant to the HOME Regulations. 3.4 Rent Increases. On an annual basis, the Executive Directors shall provide Vista Del Rio with the maximum allowable schedule of Affordable Rents for the Property in accordance with changes in allowable rent and income tables published by HUD and the State of California, provided however that the rent for the HOME units shall in no event be higher than the rent for the equivalent Assisted Unit. In no event shall Vista Del Rio charge any tenant more than the Affordable Rents prescribed for the Assisted Units pursuant to these Restrictions and as directed by the Executive Directors. 4. RENT LIMITATIONS. Vista Del Rio, its successors and assigns shall not charge rents for the Assisted Units in excess of the amounts set forth herein, as adjusted on the basis of the revised schedules of Area Median Income issued from time -to -time by HUD. The Executive Directors shall notify Vista Del Rio in writing of the adjusted allowable maximum incomes and rents. 5. MANAGEMENT PLAN. Vista Del Rio shall adopt and include as part of its Management Plan (described in Section 11 below), written tenant selection policies and criteria for the Assisted Units, that meet the following requirements: (a) Are consistent with the purpose of providing housing for Very Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; (c) Give reasonable consideration to the housing needs of households that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) To the extent allowed by applicable federal, state and local law, provide first priority in the selection of qualified eligible tenants to households that are referred by the City or Agency; (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the Assisted Units. Vista Del Rio, the City and Agency shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re- renting of any Assisted Units ( 24 CFR 92.351); and B -9 DOCSOC/ 1475221 v5/200272 -0004 (g) The Project shall serve the needs of individuals and families who require special needs housing, specifically persons with disabilities. For purposes of this Section, the term "persons with disabilities" includes, but is not limited to, any physical or mental disability as defined in Government Code Section 12955.3. The Project shall be designed for occupancy by persons with disabilities, by, for example, including design features that makes the Project physically accessible to people with mobility impairments. To the extent permitted by law, Vista Del Rio shall lease each of the forty Assisted Units (not including the manager's unit) to persons with disabilities or to families which include one or more persons with disabilities. 6. RENTAL VOUCHER TENANTS. Vista Del Rio, its successors and assigns, shall not refuse to lease an Assisted Unit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable HOME tenant -based assistance document. Total rents charged to such tenants, including the tenant contribution and rental assistance, shall not exceed the allowable rents as described above. 7. LEASE PROVISIONS. Any lease of any of the Assisted Units must be for not less than one year. The lease may not contain any of the following provisions (in which references to "owner" shall mean the Vista Del Rio, 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 Assisted Unit after the tenant has moved out of the Assisted Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. B -10 DOCSOC/ 1475221 v5/200272 -0004 �:TI 8. SUCCESSORS AND ASSIGNS. Vista Del Rio, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. 9. MAINTENANCE OF PROPERTY. Vista Del Rio shall, at its sole cost and expense, maintain or cause to be maintained the interior and exterior of the Project and all Assisted 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 Assisted 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 Vista Del Rio fails to maintain the Project or the Property in accordance with this Agreement and such condition is not corrected within five (5) Business Days after written notice from City or Agency with respect to graffiti, debris, and waste material, or thirty (30) days after written notice from City or Agency with respect to general maintenance, landscaping and building improvements, then City and Agency, in addition to whatever remedy they 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 Agency and /or costs of such cure, including a reasonable administrative charge, which amount shall be promptly paid by Vista Del Rio to City or Agency, as applicable, 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 Senior Loan approved pursuant to the terms of the DDA. The City and /or Agency shall inspect the Property annually after the date of issuance of the Release of Construction Covenants as described in Section 310 of the DDA and Vista Del Rio shall cooperate with the City and Agency to make the Property and all Assisted Units thereon available for such inspection. Vista Del Rio shall not remove, demolish or materially alter any Improvement without 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. 10. NONDISCRIMINATION COVENANTS 10.1 Obligation to Refrain from Discrimination Vista Del Rio 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 Vista Del Rio 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. 10.2 Nondiscrimination in Employment Vista Del Rio 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 B -11 DOCSOC /1475221 v5/200272 -0004 ,9 *11 t i 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. 10.3 Statutory Nondiscrimination Covenants. Except to the extent preferences are permitted or required by this Agreement, Vista Del Rio 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. Vista Del Rio 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. Vista Del Rio shall also comply 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. 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 13-12 DOCSOC/ 1475221 v5/200272 -0004 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." 10.4 In Affordable Housing Restrictions. The foregoing covenants shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (c) remain effective for the Term hereof. 11. MANAGEMENT OF PROJECT. Not later than five (5) business days prior to the execution of the documents, Vista Del Rio shall submit to the Executive Directors a Management Plan in a form that is acceptable to the Executive Directors, including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the Executive Directors not later than the time for the Closing. Vista Del Rio shall manage the Assisted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the Executive Directors, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Vista Del Rio shall submit the name and qualifications of the proposed Management Agent. The Executive Directors shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. The John Stewart Company is hereby approved as the initial Management Agent. (b) Management Agreement. Vista Del Rio shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Vista Del Rio and Management Agent. Such management agreement (including the management fee) shall be reasonably acceptable to the Executive Directors. (c) Project OperatingBudget. Prior to the Closing, and annually thereafter not later than 60 days prior to the beginning of the next Calendar Year, Vista Del Rio shall submit a projected operating budget and cash flow ( "Operating Budget ") to the Executive Directors. The Operating Budget and cash flow shall be in a form that is reasonably acceptable to the Executive Directors. Vista Del Rio must promptly deposit all revenue received with respect to the Project directly into a segregated, interest - bearing depository account established exclusively for the Project ( "Project Operating Account "). Withdrawals from the Project Operating Account may be made only in accordance with the provisions of the Loan Agreement and the Operating Budget approved annually by the Executive Directors, as it may be revised from time to time with City and Agency approval. Vista Del Rio may make withdrawals from the Project Operating Account solely for the payment of Project expenses and Project fees included in the approved Operating Budget. Withdrawals from the Project Operating Account for other purposes may be made only with the prior B -13 DOCSOC /1475221 v5/200272 -0004 written approval of the Executive Directors. Further, Vista Del Rio shall obtain the prior written approval of the Executive Directors for any expenditure from the Project Operating Account that exceeds by ten percent (10 %) or more the amount set forth for the applicable line item in the Operating Budget and/or for any expenditure that would, cumulatively with all prior expenditures in the applicable year, exceed the total approved annual Operating Budget for the Project by ten percent (10 %) or more. (d) Tenant Selection Policies. Vista Del Rio shall include in the Management Plan the tenant selection policies in accordance with Section 5, above. 12. If at any time the City or Agency determines that the Assisted Units are not being managed or maintained in accordance with the approved Management Plan, Vista Del Rio shall change the Management Agent or the practices complained of, upon receipt of written notice from the Executive Directors. The Executive Directors may require Vista Del Rio to change management practices or to terminate the management contract and designate and retain a different Management Agent. The management agreement shall provide that it is subject to termination by Vista Del Rio without penalty, upon thirty (30) days prior written notice, at the direction of the Executive Directors. Within ten (10) days following a direction of the Executive Directors to replace the Management Agent, the Vista Del Rio shall select another Management Agent or make other arrangements satisfactory to the Executive Directors or designee for continuing management of the Assisted Units. 13. COVENANTS. The covenants established in these Restrictions and any amendments hereto approved by the City, Agency and Vista Del Rio shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City, the Agency, and their respective successors and assigns. These Restrictions shall remain in effect for fifty -five (55) years from the recordation of the Release of Construction Covenants ( "Term "). In its discretion, the City may defer repayment of the Loans or the City and Agency may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Assisted Units. The covenants against discrimination shall remain in effect for the Term of these Restrictions. 14. DISBURSEMENT. Vista Del Rio shall not request disbursement of any proceeds of the Loans until the funds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreement and these Restrictions [24 CFR 92.504 (c)(10)]. 15. REPORTS. Vista Del Rio shall prepare, maintain and submit to the City, as appropriate, the following records and reports in compliance with 24 CFR 92.504 (c) (12): a. Annual Reports. Vista Del Rio shall file with the City an Annual Report (herein referred to as the "Annual Report") within one hundred twenty (120) days following the end of each calendar year, commencing with the end of the calendar year (or portion thereof) in which the Real Estate Closing occurs. The Annual Report shall contain a certification by Vista Del Rio as to such information as the City Executive Director may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 12.5 of the Loan Agreement which shall include an audited B -14 DOCSOC/ 1475221 v5/200272 -0004 8OB -75 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 (including a calculation of the Residual Receipts available to make payments on the Loans); a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual Budget and audited financial statement shall be prepared in accordance with generally accepted accounting practices, consistently applied (and in accordance with Section 15.5 of the Loan Agreement). (2) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Vista Del Rio 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. (3) The occupancy of the Assisted 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. (4) General management performance, including tenant relations and other relevant information. (5) Records that demonstrate that the Assisted Units meet the affordability requirements of 24 CFR 92.252, 50052.5 and 50053(b)(1) 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. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the Deeds of Trust, with a loss payable endorsement naming the Agency and City as a loss payee(s) together with other approved lenders (as their interests may appear), with a "Replacement Cost Endorsement" in amount sufficient to prevent Vista Del Rio, Agency or City from becoming a co- insurer under the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. (7) Evidence of a currently paid liability insurance policy, naming the City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreement. (8) Termite reports pertaining to the Property every fifth (5th) year. (9) Such other information as may be reasonably required by the Executive Directors or their designee(s). b. Records and Audits. Vista Del Rio shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; B -15 DOCSOC/ 1475221 v5/200272 -0004 (2) records, for each HOME Unit, which demonstrates that the project meets the requirements of 24 CFR 92.252. (3) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (4) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group 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 Program funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. § 1701u); (C) documentation and data on the steps taken to implement Vista Del Rio's outreach programs to minority -owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (5) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CFR 92.351, if applicable; (6) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the Real Estate Closing (i.e., the date on which Vista Del Rio obtained site control); (7) records concerning lead -based paint in accordance with 24 CFR 92.355; (8) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (9) records of certifications of contractor qualifications as they relate to the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (10) any other reports issued by other monitoring agencies. c. All records, accounts, documentation and other materials pertaining to the Project must be retained for the most recent five year period, except that construction records may be retained for five years after the date the Release of Construction Covenants is recorded against the Property and 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 expiration of the Term hereof. Vista Del Rio shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Term of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the Agency, the State, the Office of the Auditor General of HUD, and/or their representatives shall have unrestricted B -16 DOCSOC/ 1475221 v5/200272 -0004 806'77 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. d. If so directed by the Agency, City, the State or HUD upon termination of the Loan Agreement, Vista Del Rio shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the Agency, City, the State or HUD, as depository. e. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the Agency, City, the State or HUD, on reasonable prior notice, for the purpose of examination or audit. f. Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Vista Del Rio shall reasonably cooperate with City in performing such audit. 16. THIRD PARTY BENEFICIARY. The Santa Ana Housing Authority ( "Authority ") is an intended third party beneficiary of the terms and provisions of these Restrictions and the covenants herein, with full right (but no obligation) to enforce the terms, provisions, and covenants contained herein. City, Agency and Authority are each beneficiaries hereunder, both for and in their own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City, Agency, and Authority shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. 17. COVENANTS RUN WITH LAND. The covenants and agreements contained herein shall run with the land and not be personal obligations of Vista Del Rio. 18. TRANSFERS OF INTEREST IN PROPERTY OR AGREEMENT 18.1 Prohibition. The qualifications and identity of Vista Del Rio are of particular concern to the Agency and City. It is because of those qualifications and identity that Agency and City have entered into the Loan Agreement and the other Project Documents with Vista Del Rio. Therefore, for the period commencing upon the date of the Loan Agreement and until the expiration of the Term hereof, no voluntary or involuntary successor in interest of Vista Del Rio shall acquire any rights or power under the Loan Agreement or these Restrictions, nor shall Vista Del Rio 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 (collectively, "Transfer ") without prior written approval of the Agency and City, except as expressly set forth herein. Any proposed total or partial Transfer without Agency and City approval shall constitute a Default pursuant to Article 20, et seq., hereof. 18.2 Permitted Transfers. Notwithstanding any other provision of the Loan Agreement or these Restrictions to the contrary, Agency and City approval of a Transfer shall not be required in connection with any of the following: B -17 DOCSOC /1475221 v5/200272 -0004 �i1� � el (a) Any Transfer to an entity or entities in which Vista Del Rio directly or indirectly retains a minimum of fifty -one percent (51 %) of the 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. (c) Any requested assignment for financing purposes (subject to such financing being considered and approved by the Agency pursuant to Section 311 of the DDA), including the grant 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 Vista Del Rio upon the expiration of the fifteen (15) year tax credit compliance period applicable to the Project. (e) A Transfer of a General Partner's interest in Vista Del Rio when made in connection with the exercise by the Limited Partner of its rights upon a default by a General Partner under the Partnership Agreement or upon a General Partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the General Partner with a reasonable period and thereafter diligently proceeds to complete such substitution. (f) Any Transfer of the Property to the Managing General Partner pursuant to the right of first refusal or to the General Partners pursuant to the purchase option, as provided for in the Partnership Agreement. (g) Any sale, transfer or other disposition of an interest in the Limited Partner. (h) Any sale, transfer or other disposition of the Limited Partner's interest in Vista Del Rio as allowed by the Partnership Agreement. In the event of a Transfer by Vista Del Rio described above not requiring the City's or Agency's prior approval, Vista Del Rio 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 in writing through an assignment and assumption agreement all of Vista Del Rio's obligations set forth in the Loan Agreement and these Restrictions. Upon the satisfaction of said obligations and the Transfer, the assignor shall be released from all obligations to the Agency and City hereunder (except obligations to indemnify the Agency and City pursuant to Section 14.5 and Article 18, et seq., of the Loan Agreement). 18.3 Agency /City Consideration of Requested Transfer. Agency and City agree that they will not unreasonably withhold, condition or delay approval of a request for approval of a Transfer made pursuant to this Section 18.3, provided Vista Del Rio 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 B -18 DOCSOC /1475221 v5/200272 -0004 �011 _ J evaluate the proposed assignee or purchaser pursuant to the criteria set forth in this Section 18.3 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 18.3 applies, which the Agency /City determines does not possess equal or better qualifications than 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 fifteen (15) days after the receipt of Vista Del Rio's written notice requesting Agency approval of an assignment or transfer pursuant to this Section 18.3, 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, Vista Del Rio shall promptly furnish to the Agency /City such further information as may be reasonably requested and the Agency and City shall approve or disapprove the requested Transfer within fifteen (15) days after receipt of all such requested information. 18.4 Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon Vista Del Rio and its permitted successors and assigns. Whenever the term "Vista Del Rio" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 19. ENFORCEMENT OF AGREEMENTS. The Loan Agreement and all of its attachments shall be enforceable by City, Agency and Authority in accordance with the terms thereof. Each of the Loan Agreement, these Restrictions, the City/HOME Loan Note, the Agency Loan Note, the City /HOME Loan Deed of Trust, and the Agency Loan Deed of Trust provide a means of enforcement by the City and the Agency if Vista Del Rio is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. 20. SUBORDINATION OF AFFORDABILITY RESTRICTIONS. In the event the Executive Directors find 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 Directors may agree to subordinate the covenants contained in the Affordability Restrictions to the Senior Loan and /or the Tax Credit Regulatory Agreement, subject to the terms of this Section 20. 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 Directors find 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 Vista Del Rio (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 Vista Del Rio 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 B -19 DOCSOC/ 1475221 v5/200272 -0004 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: (1) 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, (2) 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 (3) a right of Agency and City to acquire Vista Del Rio's interest in the Property from Vista Del Rio at any time after a material default on the Senior Loan for the Project. [Signatures appear on following pages.] B -20 DOCSOC /1475221 v5/200272 -0004 IN WITNESS WHEREOF, the parties hereto have caused these Affordability Restrictions on Transfer of Property to be executed as of the date first set forth above. ATTEST: Maria D. Huizar, Secretary APPROVED AS TO FORM IIn Lisa E. Storck Assistant Counsel ATTEST: Maria D. Huizar, Cleric of the Council APPROVED AS TO FORM Lisa E. Storck Assistant City Attorney AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic M. Nancy T. Edwards, Interim Executive Director CITY: CITY OF SANTA ANA, a municipal corporation IN B -21 DOCSOC/ 1475221 v5/200272 -0004 Dave N. Ream, City Manager x:11 = :Y VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership By: Foundation for Affordable Housing V, Inc. a California nonprofit public benefit corporation, its Managing General Partner Deborrah A. Willard, President B -22 DOC SOC/ 1475221 v5/200272 -0004 ' ie i j�1 EXHIBIT C FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana — Community Development Agency 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 Attn: Executive Director CITY/HOME LOAN DEED OF TRUST AND ASSIGNMENT OF RENTS This CITY/HOME LOAN DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust ") is made this day of March 2011, among Vista Del Rio Housing Partners L.P., a California limited partnership (the "Trustor "), First American Title Insurance Company, a California corporation (the "Trustee "), 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 `Beneficiary "). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Attachment No. 1 and more commonly known 1600 West Memory Lane, Santa Ana, California (the "Property "); TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Deed of Trust; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement secured by this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefore, whether or not the same are, or shall be C -1 DOCSOC/ 1475221 v5/200272 -0004 attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security "; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor, dated concurrently herewith in the principal amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) (the "Loan "); (b) the payment and performance of the covenants and agreements of Trustor contained in the Loan Agreement recorded with the County of Orange as Document No. , by and among Trustor, Beneficiary, and Agency (the "Agreement "), (c) the payment and performance of the covenants and agreements of Trustor contained in the Disposition and Development Agreement dated July 20, 2009, the First Amendment to the Disposition and Development Agreement dated March 15, 2010, the Second Amendment to the Disposition and Development Agreement dated December 20, 2010, and the Third Amendment to the Disposition and Development Agreement dated , by and among Trustor, Agency, and Santa Ana Housing Authority (the "Authority ") (collectively, the "DDA "); (d) the payment and performance of the covenants and agreements of Trustor contained in the Affordability Restrictions on Transfer of Property by and among Agency, Trustor and Beneficiary, dated as recorded concurrently herewith (the "Affordability Restrictions ") and (e) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Loan. This Deed of Trust is executed and delivered, along with the Promissory Note, pursuant to and in implementation of the 41 unit special needs affordable multi - family residential project in the aforementioned Agreement and DDA entered into by and between the Beneficiary and Trustor, to benefit the Property, a copy of which is on file as a public record with the Beneficiary. Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Promissory Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and development of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal and interest, if any, as required by the Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to any and all obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property; subject to and provided that the Beneficiary and such Senior Lender enter into a subordination agreement providing notice and cure rights to Beneficiary that are reasonably acceptable to the Executive Directors and consistent with the requirements of Section 20 of the Affordability Restrictions. C -2 DOCSOC/ 1475221 v5/200272 -0004 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due. Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days' advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the grant under this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the Loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default C -3 DOCSOC/ 1475221 v5/200272 -0004 �: 1i : :11: under this Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at Vista Del Rio Housing Partners, L.P., c/o Foundation for Affordable Housing V, Inc.,30950 Rancho Viejo Road, Suite 100, San Juan Capistrano, CA 92675, and (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: City Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above. Notice shall be effective as of the date received by the Beneficiary as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California. C -4 DOCSOC /1475221 v5/200272 -0004 Q 8OB -87 16. Severability. In the event that any provision or clause of this Deed of Trust or the Promissory Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the Promissory Note are declared to be severable. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, or any default under any other agreement the performance of which is secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non - existence of default or any other defense of Trustor to acceleration and sale. If the breach is not cured on or before the date specified in the notice or such longer period as provided above, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or any part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. C -5 DOCSOC/1 47522 1 v5/200272 -0004 Q Q 8OB -88 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if. (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements Trustor contained in this Deed of Trust and the Covenants; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and the Covenants, and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconveyance. Upon payment or forgiveness of all sums secured by this Deed of Trust and expiration of the Term of the Agreement and the Term of the Affordability Restrictions, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustor at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any general partner of Trustor shall have any personal liability under the Loan Agreement, Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the Loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. 25. Third Party Beneficiaries. Agency and Authority are third party beneficiaries of Beneficiary's rights hereunder, with full right (but no obligation) to enforce the terms and exercise the remedies provided to Beneficiary hereunder. C -6 DOCSOC/ 1475221 v5/200272 -0004 8OB -89 IN WITNESS WHEREOF, Trustor has executed this City /HOME Loan Deed of Trust and Assignment of Rents as of the date first written above. " Trustor" VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership By: Foundation for Affordable Housing V, Inc. a California nonprofit public benefit corporation, its Managing General Partner Deborrah A. Willard, President C -7 DOCSOC /1475221 v5/200272 -0004 EXHIBIT D CITY/HOME LOAN NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA $1,500,000.00 , 2011 Santa Ana, California 1. Principal Amount of City/HOME Loan For value received, Vista Del Rio Housing Partners, L.P., a California limited partnership (`Borrower "), promises to pay to the order of the City of Santa Ana ( "City "), at 20 Civic Center Plaza, 3rd Floor, Santa Ana, California 92702, or at such other place as the City may from time to time designate in writing, or to the assignee of the City, the principal sum of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00) or so much thereof as shall be disbursed hereunder, with three percent interest (3.0 %). In implementation of the acquisition and development of that certain real property in the City, described in the Loan Agreement as the "Property," commonly known as 1600 Memory Lane, Santa Ana, California, and operation of the Property as affordable rental housing for Extremely Low Income and Very Low Income households, (a) the Community Redevelopment Agency for the City of Santa Ana ( "Agency "), the Santa Ana Housing Authority ( "Authority "), and Borrower have heretofore entered into that certain Disposition and Development Agreement (as amended, the "DDA "), (b) City, Agency and Borrower have entered into that certain "Loan Agreement" dated concurrently herewith and recorded against the Property (the Loan Agreement and DDA are collectively referred to herein as the "Agreement "), and (c) City, Agency and Borrower have entered into those certain Affordability Restrictions on Transfer of Property, dated concurrently herewith and recorded against the Property ( "Affordability Restrictions "). This Note is made pursuant to, entitled to the benefits of and referred to as the City/HOME Loan Note in the Loan Agreement. This Note is secured by that certain City /HOME Loan Deed of Trust and Assignment of Rents between Borrower and City, dated concurrently herewith (the "City /HOME Loan Deed of Trust "). This Note, the Loan Agreement, the Affordability Restrictions, and the City /HOME Loan Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities of Borrower thereunder inure to the benefit of the City, Agency and Authority. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Loan Agreement. 2. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "City/HOME Loan" shall mean the loan evidenced by this Note. "Calendar Year" means each consecutive twelve (12) month period from January I to December 30. "Closing Costs" shall mean: D -1 DOCSOC/ 1475221 v5/200272 -0004 9611 = '� (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of completing such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal, interest and /or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "`Project Accounts ") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. Gross Revenues shall not include loan proceeds or capital contributions. "Operating Expenses" shall mean the sum of the following: (i) scheduled payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms - length transactions for similar services in the Santa Ana, California area. (iii) a management fee equal to $55 per unit a month (increasing by CPI): (iv) deposits into required reserves D -2 DOCSOC /1475221 v5/200272 -0004 80B -92 (v) payments due on any deferred Developer Fees; (vi) Any other expenses necessary to meet Senior Lender requirements and requirements of Borrower's Limited Partner, or its assignee, as set forth in Borrower's Partnership Agreement. "Project" shall mean the acquisition, development, operation, maintenance, and management of the Property as affordable housing by Borrower pursuant to the Agreement. "Property" shall mean the real property located at 1600 Memory Lane, Santa Ana, California, described in the City /HOME Loan Deed of Trust. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and /or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan. "Refinancing Proceeds" shall be disbursed as set forth in Section 7 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses applicable to each such year less the items listed in the Partnership Agreement in Section 5.1(a)(i) -(ix) to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, conveyance or lease (other than to a tenant for occupancy) of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty -five percent (35 %) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. "Sale Proceeds" shall mean the proceeds received by Borrower in connection with any Sale. "Senior Loan" shall mean the senior loan being made by , concurrent to the City/HOME Loan for payment of a portion of the Construction costs incurred by Vista Del Rio relating to the Project, as approved by the Executive Directors, and shall include any subsequent loan that refinances the initial Senior Loan. "Term" the term for repayment of this Note shall mean fifty -five (55) years from the date of this Note. 3. City/HOME Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 7 (Refinancing Proceeds), 8 (Sale Proceeds) and 10 (Accelerated Loan Repayment). D -3 DOCSOC/ 1475221 v5/200272 -0004 x;11 : •�a 4. Reserved. 5. Annual City/HOME Loan Repayment. a. Borrower shall make a City/HOME Loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of Residual Receipts, as provided in this Section 5. b. Within one hundred twenty (120) days after the close of the initial Calendar Year following the year the Project is placed -in- service and on or before the 120th day of each Calendar Year thereafter, the Borrower shall submit to the City audited financial statements including a detailed statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City /HOME Loan payment then due. C. The Borrower shall pay to the City seventy -five percent (75 %) of the Residual Receipts ( "City's Percentage of Residual Receipts ") as payment of principal and interest under the City /HOME Loan. The remaining twenty five percent (25 %) of the Residual Receipts shall remain with the Borrower. Pursuant to the Loan Agreement, the Borrower has also received a loan of tax increment funds from the Agency in the original principal amount of $469,000 ( "Agency Loan "). The City's Percentage of Residual Receipts for each year shall be applied to repay the amounts owing under this Note and the amounts owing under the Agency Loan, as follows: 24% of the City's Percentage of Residual Receipts will be applied to repay the Agency Loan and 76% of the City's Percentage of Residual Receipts will be applied to repay amounts owing under this Note. Upon repayment in full of all amounts owing under the Agency Loan, the entire City's Percentage of Residual Receipts shall be allocated to repayment of the amounts owing hereunder in accordance with Section 13.a. hereof. d. The Residual Receipts payment shall be made not later than one hundred fifty (15 0) days after the close of the Calendar Year. 6. Reserved. 7. City/HOME Loan Repayment from Refinancing Proceeds. The Borrower shall make a City /HOME Loan payment to the City from every Refinancing that occurs during the term of this Note not to exceed the outstanding balance of principal and interest on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the Borrower shall pay to the City fifty percent (50 %) of the Refinancing Proceeds ( "City's Percentage of the Refinancing Proceeds ") to the extent of the outstanding balance on this Note. The remaining Refinancing proceeds shall remain with Borrower. Such payment shall be due on the date of such Refinancing, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the City /HOME Loan. The City shall not be required to reconvey the lien of the City/HOME Loan Deed of Trust if Refinancing Proceeds are insufficient to repay the City /HOME Loan in full. While any amounts owing under the Agency Loan remain unpaid, the City's Percentage of the Refinancing Proceeds shall be allocated between repayment of this Note and the D -4 DOCSOC /1475221 v5/200272 -0004 8OB -94 Agency Loan Note in the same manner as the City's Percentage of Residual Receipts as described in Section 5.c. 8. City/HOME Loan Repayment from Sale Proceeds. The Borrower shall make a City /HOME Loan payment, not to exceed the outstanding balance of principal and interest on this Note, to the City from any Sale that occurs during the term of the City /HOME Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next the Borrower shall pay to the City fifty percent (50 %) of the total Sale Proceeds ( "City's Percentage of the Sale Proceeds "), not to exceed the outstanding amount of principal and interest due on this Note. This fifty percent (50 %) represents the total payment due under the City Note. The remaining Sale Proceeds shall remain with Borrower. Such payment shall be due on the date of such Sale, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the City/HOME Loan. The City shall not be required to reconvey the lien of the City /HOME Deed of Trust if Sale Proceeds are insufficient to repay the City /HOME Loan in full. While any amounts owing under the Agency Loan remain unpaid, the City's Percentage of the Sale Proceeds shall be allocated between repayment of this Note and the Agency Loan Note in the same manner as the City's Percentage of Residual Receipts as described in Section 5.c. Buy Out Option. In the event that there is a decision to sell the Property, the Managing General Partner of Borrower shall be given the first right of refusal or the General Partners may exercise the purchase option pursuant to the Borrower's Partnership Agreement (and any amendments thereto). If neither of these options or the right of first refusal are exercised by the General Partners of Borrower, then the City shall have the second right of refusal, subject to the terms and conditions of Section 42(i)(7) of the Internal Revenue Code. 10. Accelerated Citv/HOME Loan Pavment. The full principal amount outstanding plus accrued but unpaid interest thereon, shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 15 hereof, unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City/HOME Loan, the City approves such sale and the purchaser assumes the balance of the City/HOME Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the City/HOME Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note; b. In event of default pursuant to any of the Loan Documents or the Senior Loan Documents; C. Any default by Borrower as to any other loan or loans by City or Agency to Borrower with respect to the Property; or D -5 DOCSOC/ 1475221 v5/200272 -0004 8OB -95 d. The date that is fifty five (55) years after the date of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms of this Note or extend the Term of this City/HOME Loan Note. 11. Prepayment. Borrower may prepay the outstanding principal balance under this Note, in whole or in part, together with any accrued but unpaid interest, if any, and other sums owed to the City under this Note, if any, at any time without penalty. 12. Lawful Money. All payments hereunder shall be made in lawful money of the United States of America. 13. Application of Payments; Late Charges. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal and interest, due the City pursuant to this Note, next to the payment of all interest accrued to the date of such payment, and the balance, if any, to the payment of principal. b. If any payment is not received by the City within ten (10) days following the due date thereof, then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4 %) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of interest and /or principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 14. Security This Note is secured by the City /HOME Loan Deed of Trust. 15. Acceleration by Reason of Transfer or Financing. a. In order to induce City to make the City /HOME Loan evidenced hereby, Borrower agrees that in the event of any Transfer (defined in Section 16.2 of the Loan Agreement) of the Property without the prior written consent of City (other than a Transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny D -6 DOC SOC/ 1 475221 v5/200272 -0004 8OB -96 such consent in its sole discretion and, if consent should be given, any such Transfer shall be subject to this Section 15, and any such Transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City/HOME Loan together with all accrued and unpaid interest, shall be repaid to the City at the time of each Refinancing or partial Refinancing. C. Notwithstanding anything to the contrary contained herein, a "Transfer" shall not include a Permitted Transfer as set forth in Section 16.2.2 of the Loan Agreement. 16. Event of Default. Subject to the provisions of Sections 23 and 25 hereof, the occurrence of any of the following shall be deemed to be an event of default ( "Event of Default ") hereunder: (a) failure by Borrower to make any payments provided for herein, if such default is not cured within fifteen (15) calendar days of the due date; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Restrictions within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after the cure period, if any, provided therein. 17. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the City /HOME Loan Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the City/HOME Loan Deed of Trust. City shall also deposit with Trustee the City/HOME Loan Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal together with all accrued interest shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4 %). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 18. Attornevs' Fees. If this City /HOME Loan Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees and expert witness fees, whether or not any action or proceeding is brought to enforce the provisions hereof. D -7 DOCSOC/ 1475221 v5/200272 -0004 19. Severability Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 20. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 21. Non - recourse. The City /HOME Loan is a nonrecourse obligation of the Borrower. Neither Borrower nor any other party shall have any personal liability for repayment of the City /HOME Loan or for any other amounts under any of the documentation evidencing, securing or describing the City /HOME Loan. The sole recourse of City under this Note and the City /HOME Loan Deed of Trust for repayment of the City /HOME Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 22. Subordination. a. It is hereby expressly agreed and acknowledged by Borrower and City that the City/HOME Loan Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to the Senior Loan Deeds of Trust held by the Senior Lender, subject to and provided that the City and such Senior Lender enter into a subordination agreement providing notice and cure rights to City that are reasonably acceptable to the Executive Directors and consistent with the requirements of Section 20 of the Affordability Restrictions. b. City acknowledges that Borrower and the California Tax Credit Allocation Committee intend to enter into, or concurrently with the execution and delivery of the Loan Documents are entering into, an extended use agreement, which constitutes the extended low - income housing commitment described in Section 42(h)(6)(B) of the Internal Revenue Code, as amended. City agrees to subordinate the provisions of this Note to the relevant provisions of said extended use agreement. This subordination is being made in consideration of the allocation of tax credits to the project to be constructed on the Property, absent which the development of the Project would not occur, and this City /HOME Loan would not be made. 23. Notice of Default. a. Subject to the applicable cure periods set forth in Section 16 and extensions of time set forth in Section 25, and subject to the further provisions of this Section 23, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy -with reasonable diligence and during any period of curing shall not be in default. D -8 DOCSOC/ 1475221 v5/200272 -0004 80B -98 b. The City shall give written notice of default to the Borrower, specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the City to be reasonably necessary to correct the default). d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the City /HOME Loan Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of seven (7) days after such notice is given within which to cure the default prior to exercise of remedies by City under this Note and the City /HOME Loan Deed of Trust. f. If a non - monetary event of default occurs under the terms of this Note or the City /HOME Loan Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then Borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given. 24. Insurance and Condemnation. In the event of any fire or other casualty to the Project or eminent domain proceedings resulting in condemnation of the Project or any part thereof, Borrower shall have the right to rebuild the Project, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the City /HOME Loan in balance and rebuild the Project in a manner that provides adequate security to City for repayment of the City /HOME Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Project and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the City /HOME Loan in a manner that provides adequate security for repayment of the remaining balance of the City /HOME Loan. D -9 DOC SOC/ 1475221 v5 /200272 -0004 8OB -99 25. Force Maieure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 26. Assignments. The City, and any assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 27. Agency and Authority Right to Enforce. The Agency and Authority are each intended third party beneficiaries of City's rights under this Note, with full rights (but no obligation) to enforce all of Borrower's obligations hereunder. {Signatures appear on following page) D -10 DOCSOC/1475221 v5/200272 -0004 This City /HOME Loan Note is hereby entered into as of the date first stated hereinabove. VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership By: Foundation for Affordable Housing V, Inc. a California nonprofit public benefit corporation, its Managing General Partner D -11 DOC SOC/ 1475221 v5/200272 -0004 Deborrah A. Willard, President 0''i = I EXHIBIT E FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 Attn: Executive Director AGENCY LOAN DEED OF TRUST AND ASSIGNMENT OF RENTS This AGENCY LOAN DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust ") is made this day of March 2011, among Vista Del Rio Housing Partners L.P., a California limited partnership (the "Trustor "), First American Title Insurance Company, a California corporation (the "Trustee "), and the Community Redevelopment Agency of the City of Santa Ana, a public body, corporate and politic (the `Beneficiary "). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Attachment No. 1 and more commonly known 1600 West Memory Lane, Santa Ana, California (the "Property "); TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Deed of Trust; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement secured by this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefore, whether or not the same are, or shall be E -1 DOCSOC/ 1475221 v5/200272 -0004 8OB -102 attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security "; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor, dated concurrently herewith in the principal amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) (the "Loan "); (b) the payment and performance of the covenants and agreements of Trustor contained in the Loan Agreement recorded with the County of Orange as Document No. , by and among Trustor, Beneficiary, and City (the "Agreement "), (c) the payment and performance of the covenants and agreements of Trustor contained in the Disposition and Development Agreement dated July 20, 2009, the First Amendment to the Disposition and Development Agreement dated March 15, 2010, the Second Amendment to the Disposition and Development Agreement dated December 20, 2010, and the Third Amendment to the Disposition and Development Agreement dated , by and among Trustor, Beneficiary, and Santa Ana Housing Authority (the "Authority ") (collectively, the "DDA "); (d) the payment and performance of the covenants and agreements of Trustor contained in the Affordability Restrictions on Transfer of Property by and among City, Trustor and Beneficiary, dated as recorded concurrently herewith (the "Affordability Restrictions ") and (e) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: I . Agency. This Deed of Trust is executed and delivered, along with the Promissory Note, pursuant to and in implementation of the 41 unit special needs affordable multi- family residential project in the aforementioned Agreement and DDA entered into by and between the Beneficiary and Trustor, to benefit the Property, a copy of which is on file as a public record with the Beneficiary. Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Promissory Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and development of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal and interest, if any, as required by the Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to any and all obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property; subject to and provided that the Beneficiary and such Senior Lender enter into a subordination agreement providing notice and cure rights to Beneficiary that are reasonably acceptable to the Executive Directors and consistent with the requirements of Section 20 of the Affordability Restrictions. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which E -2 DOCSOC/ 1475221 v5/200272 -0004 8OB -103 has priority over this Instrument, including Trustor's covenants to make payments when due. Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days' advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the grant under this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the Loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under this Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the E -3 DOCSOC/ 1475221 v5/200272 -0004 80B -104 Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at Vista Del Rio Housing Partners, L.P., c/o Foundation for Affordable Housing V, Inc.,30950 Rancho Viejo Road, Suite 100, San Juan Capistrano, CA 92675, and (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Executive Director, or at such other address as the Beneficiary may designate by notice to Trustor as provided above. Notice shall be effective as of the date received by the Beneficiary as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California. 16. Severability. In the event that any provision or clause of this Deed of Trust or the Promissory Note conflicts with applicable law, such conflict will not affect other provisions of this E -4 DOCS00 1475221 v5/200272 -0004 8OB -105 Deed of Trust or the Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the Promissory Note are declared to be severable. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, or any default under any other agreement the performance of which is secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non - existence of default or any other defense of Trustor to acceleration and sale. If the breach is not cured on or before the date specified in the notice or such longer period as provided above, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or any part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof, (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the E -5 DOCSOC/ 1475221 v5/200272 -0004 80B -106 Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust i£ (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements Trustor contained in this Deed of Trust and the Covenants; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and the Covenants, and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconve,, ate. Upon payment or forgiveness of all sums secured by this Deed of Trust and expiration of the Term of the Agreement and the Term of the Affordability Restrictions, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustor at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any general partner of Trustor shall have any personal liability under the Loan Agreement, Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the Loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. 25. Third Party Beneficiaries. City and Authority are third party beneficiaries of Beneficiary's rights hereunder, with full right (but no obligation) to enforce the terms and exercise the remedies provided to Beneficiary hereunder. E -6 DOCSOC /1475221 v5/200272 -0004 80B -107 IN WITNESS WHEREOF, Trustor has executed this Agency Loan Deed of Trust and Assignment of Rents as of the date first written above. " Trustor" VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership By: Foundation for Affordable Housing V, Inc. a California nonprofit public benefit corporation, its Managing General Partner E -7 DOCSOC/ 1475221 v5/200272 -0004 Deborrah A. Willard, President EXHIBIT F AGENCY LOAN NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA $469,000.00 , 2011 Santa Ana, California 1. Principal Amount of Agency Loan For value received, Vista Del Rio Housing Partners, L.P., a California limited partnership ( "Borrower "), promises to pay to the order of the Community Redevelopment Agency of the City of Santa Ana ( "Agency "), at 20 Civic Center Plaza, Santa Ana, California 92702, or at such other place as the Agency may from time to time designate in writing, or to the assignee of the Agency, the principal sum of FOUR HUNDRED THOUSAND SIXTY -NINE DOLLARS ($469,000.00) or so much thereof as shall be disbursed hereunder, with three percent interest (3.0 %). In implementation of the acquisition and development of that certain real property in the City of Santa Ana ( "City "), described in the Loan Agreement as the "Property," commonly known as 1600 Memory Lane, Santa Ana, California, and operation of the Property as affordable rental housing for Extremely Low Income and Very Low Income households, (a) Agency, the Santa Ana Housing Authority ( "Authority "), and Borrower have heretofore entered into that certain Disposition and Development Agreement (as amended, the "DDA "), (b) City, Agency and Borrower have entered into that certain "Loan Agreement" dated concurrently herewith and recorded against the Property (the Loan Agreement and DDA are collectively referred to herein as the "Agreement "), and (c) City, Agency and Borrower have entered into those certain Affordability Restrictions on Transfer of Property, dated concurrently herewith and recorded against the Property ( "Affordability Restrictions "). This Note is made pursuant to, entitled to the benefits of and referred to as the Agency Loan Note in the Loan Agreement. This Note is secured by that certain Agency Loan Deed of Trust and Assignment of Rents between Borrower and Agency, dated concurrently herewith (the "Agency Loan Deed of Trust "). This Note, the Loan Agreement, the Affordability Restrictions, and the Agency Loan Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities of Borrower thereunder inure to the benefit of the City, Agency and Authority. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Loan Agreement. 2. Definitions. For the purpose of calculating the payments to be made by Borrower to Agency pursuant to this Note, the following terms shall have the following respective meanings: "Agency Loan" shall mean the loan evidenced by this Note. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "Closing Costs" shall mean: F -1 DOCSOC/ 1475221 v5/200272 -0004 ���; = IR (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of completing such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and /or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal, interest and /or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "`Project Accounts ") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. Gross Revenues shall not include loan proceeds or capital contributions. "Operating Expenses" shall mean the sum of the following: (i) scheduled payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the Agency; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms - length transactions for similar services in the Santa Ana, California area. (iii) a management fee equal to $55 per unit a month (increasing by CPI): (iv) deposits into required reserves F -2 DOCSOC/ 1475221 v5/200272 -0004 8OB -110 (v) payments due on any deferred Developer Fees; (vi) Any other expenses necessary to meet Senior Lender requirements and requirements of Borrower's Limited Partner, or its assignee, as set forth in Borrower's Partnership Agreement. "Project" shall mean the acquisition, development, operation, maintenance, and management of the Property as affordable housing by Borrower pursuant to the Loan Agreement. "Property" shall mean the real property located at 1600 Memory Lane, Santa Ana, California, described in the Agency Loan Deed of Trust. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and /or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan. "Refinancing Proceeds" shall be disbursed as set forth in Section 7 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses applicable to each such year less the items listed in the Partnership Agreement in Section 5. 1 (a)(i)-(ix) to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, conveyance or lease (other than to a tenant for occupancy) of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty -five percent (35 %) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. "Sale Proceeds" shall mean the proceeds received by Borrower in connection with any Sale. "Senior Loan" shall mean the senior loan being made by , concurrent to the Agency Loan for payment of a portion of the Construction costs incurred by Vista Del Rio relating to the Project, as approved by the Executive Directors, and shall include any subsequent loan that refinances the initial Senior Loan. "Term" the term for repayment of this Note shall mean fifty -five (55) years from the date of this Note. 3. Loan Repayment. Borrower shall make payments to the Agency as provided in Sections 5 (Residual Receipts), 7 (Refinancing Proceeds), 8 (Sale Proceeds) and 10 (Accelerated Loan Repayment). F -3 DOCSOC/1475221 v5/200272 -0004 8OB -111 4. Reserved. 5. Annual Loan Repayment. a. Borrower shall make a loan payment to the Agency annually, in the amount of the lesser of the outstanding balance due under this Note or the Agency's Percentage of Residual Receipts, as provided in this Section 5. b. Within one hundred twenty (120) days after the close of the initial Calendar Year following the year the Project is placed -in- service and on or before the 120th day of each Calendar Year thereafter, the Borrower shall submit to the Agency audited financial statements, including a detailed statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a Agency Loan payment then due. C. The Borrower shall pay to the Agency seventy -five percent (75 %) of the Residual Receipts ("Agency's Percentage of Residual Receipts ") as payment of principal and interest under the Agency Loan. The remaining twenty five percent (25 %) of the Residual Receipts shall remain with the Borrower. Pursuant to the Loan Agreement, the Borrower has also received a loan of HOME Program funds from the City in the original principal amount of $1,500,000 ( "City /HOME Loan "). The Agency's Percentage of Residual Receipts for each year shall be applied to repay the amounts owing under this Note and the amounts owing under the City/HOME Loan, as follows: 76% of the Agency's Percentage of Residual Receipts will be applied to repay the City/HOME Loan and 24% of the Agency's Percentage of Residual Receipts will be applied to repay amounts owing under this Note. Upon repayment in full of all amounts owing under the City/HOME Loan, the entire Agency's Percentage of Residual Receipts shall be allocated to repayment of the amounts owing hereunder in accordance with Section 13.a. hereof. d. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. 6. Reserved. 7. Loan Renavment from Refinancing Proceeds. The Borrower shall make a loan payment to the Agency from every Refinancing that occurs during the term of this Note not to exceed the outstanding balance of principal and interest on this Note, to the extent of the Agency's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the Borrower shall pay to the Agency fifty percent (50 %) of the Refinancing Proceeds ( "Agency's Percentage of the Refinancing Proceeds ") to the extent of the outstanding balance on this Note. The remaining Refinancing proceeds shall remain with Borrower. Such payment shall be due on the date of such Refinancing, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the Agency Loan. The Agency shall not be required to reconvey the lien of the Agency Loan Deed of Trust if Refinancing Proceeds are insufficient to repay the Agency Loan in full. While any amounts owing under the City /HOME Loan remain unpaid, the Agency's Percentage of the Refinancing Proceeds shall be allocated between repayment of this Note and the City /HOME Loan F -4 DOCSOC /1475221 v5/200272 -0004 8OB -112 Note in the same manner as the Agency's Percentage of Residual Receipts as described in Section 5.c. 8. Loan Repavment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal and interest on this Note, to the Agency from any Sale that occurs during the term of the Agency Loan, to the extent of the Agency's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next the Borrower shall pay to the Agency fifty percent (50 %) of the total Sale Proceeds ( "Agency's Percentage of the Sale Proceeds "), not to exceed the outstanding amount of principal and interest due on this Note. This fifty percent (50 %) represents the total payment due under the Agency Note. The remaining Sale Proceeds shall remain with Borrower. Such payment shall be due on the date of such Sale, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the Agency Loan. The Agency shall not be required to reconvey the lien of the Agency Loan Deed of Trust if Sale Proceeds are insufficient to repay the Agency Loan in full. While any amounts owing under the City /HOME Loan remain unpaid, the Agency's Percentage of the Sale Proceeds shall be allocated between repayment of this Note and the City /HOME Loan Note in the same manner as the Agency's Percentage of Residual Receipts as described in Section 5.c. 9. Buy Out Option. In the event that there is a decision to sell the Property, the Managing General Partner of Borrower shall be given the first right of refusal or the General Partners may exercise the purchase option pursuant to the Borrower's Partnership Agreement (and any amendments thereto). If neither of these options or the right of first refusal are exercised by the General Partners of Borrower, then the Agency shall have the second right of refusal, subject to the terms and conditions of Section 42(i)(7) of the Internal Revenue Code. 10. Accelerated Loan Payment. The full principal amount outstanding plus accrued but unpaid interest thereon, shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 15 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the Agency Loan, the Agency approves such sale and the purchaser assumes the balance of the Agency Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the Agency Loan, the Agency approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note; b. In event of default pursuant to any of the Loan Documents or the Senior Loan Documents; C. Any default by Borrower as to any other loan or loans by Agency to Borrower with respect to the Property; or F -5 DOCSOC /1475221 v5/200272 -0004 8OB -113 d. The date that is fifty five (55) years after the date of this Note. On that date, the Agency agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms of this Note or extend the Term of this Agency Loan Note. 11. Prepayment. Borrower may prepay the outstanding principal balance under this Note, in whole or in part, together with any accrued but unpaid interest, if any, and other sums owed to the Agency under this Note, if any, at any time without penalty. 12. Lawful Monev. All payments hereunder shall be made in lawful money of the United States of America. 13. Annlication of Pavments; Late Charges. a. Any payments received by the Agency pursuant to the terms hereof shall be applied first to sums, other than principal and interest, due the Agency pursuant to this Note, next to the payment of all interest accrued to the date of such payment, and the balance, if any, to the payment of principal. b. If any payment is not received by the Agency within ten (10) days following the due date thereof, then in addition to the remedies conferred upon the Agency pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4 %) of the amount due and unpaid will be added to the delinquent amount to compensate the Agency for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the Agency hereunder or under any of the other Loan Documents, Borrower shall indemnify the Agency against, and shall pay the Agency on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of interest and/or principal, fees, or other amounts payable to the Agency under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the Agency setting forth the basis for the determination of the amounts necessary to indemnify the Agency in respect of such expenses or direct loss, submitted to Borrower by the Agency, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to Agency. 14. Security This Note is secured by the Agency Loan Deed of Trust. 15. Acceleration by Reason of Transfer or Financing. a. In order to induce Agency to make the loan evidenced hereby, Borrower agrees that in the event of any Transfer (defined in Section 16.2 of the Loan Agreement) of the Property without the prior written consent of Agency (other than a Transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), Agency shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a F -6 DOCSOC/ 1475221 v5/200272 -0004 8OB -114 waiver of the right to require consent to future or successive transactions. Agency may grant or deny such consent in its sole discretion and, if consent should be given, any such Transfer shall be subject to this Section 15, and any such Transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of Agency. b. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of Agency (which consent Agency may grant or deny in its sole discretion), then the entire outstanding balance of the Agency Loan together with all accrued and unpaid interest, shall be repaid to the Agency at the time of each Refinancing or partial Refinancing. C. Notwithstanding anything to the contrary contained herein, a "Transfer" shall not include a Permitted Transfer as set forth in Section 16.2.2 of the Loan Agreement. 16. Event of Default. Subject to the provisions of Sections 23 and 25 hereof, the occurrence of any of the following shall be deemed to be an event of default ( "Event of Default ") hereunder: (a) failure by Borrower to make any payments provided for herein, if such default is not cured within fifteen (15) calendar days of the due date; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Restrictions within thirty (30) days after written demand therefor by Agency (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after the cure period, if any, provided therein. 17. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, Agency may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Agency Loan Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and Agency may foreclose on the Agency Loan Deed of Trust. Agency shall also deposit with Trustee the Agency Loan Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal together with all accrued interest shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4 %). No delay or omission on the part of the Agency in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 18. Attornevs' Fees. If this Agency Loan Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees and expert witness fees, whether or not any action or proceeding is brought to enforce the provisions hereof. F -7 DOCSOC/ 1475221 v5/200272 -0004 8OB -115 19. Severability. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 20. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 21. Non - recourse. The Agency Loan is a nonrecourse obligation of the Borrower. Neither Borrower nor any other party shall have any personal liability for repayment of the Agency Loan or for any other amounts under any of the documentation evidencing, securing or describing the Agency Loan. The sole recourse of Agency under this Note and the Agency Loan Deed of Trust for repayment of the Agency Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 22. Subordination. a. It is hereby expressly agreed and acknowledged by Borrower and Agency that the Agency Loan Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to the Senior Loan Deeds of Trust held by the Senior Lender, subject to and provided that the Agency and such Senior Lender enter into a subordination agreement providing notice and cure rights to Agency that are reasonably acceptable to the Executive Directors and consistent with the requirements of Section 20 of the Affordability Restrictions. b. Agency acknowledges that Borrower and the California Tax Credit Allocation Committee intend to enter into, or concurrently with the execution and delivery of the Agency Loan Documents are entering into, an extended use agreement, which constitutes the extended low- income housing commitment described in Section 42(h)(6)(B) of the Internal Revenue Code, as amended. Agency agrees to subordinate the provisions of this Note to the relevant provisions of said extended use agreement. This subordination is being made in consideration of the allocation of tax credits to the project to be constructed on the Property, absent which the development of the Project would not occur, and this Agency Loan would not be made. 23. Notice of Default. a. Subject to the applicable cure periods set forth in Section 16 and extensions of time set forth in Section 25, and subject to the further provisions of this Section 23, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy -with reasonable diligence and during any period of curing shall not be in default. F -8 DOCSOC/ 1475221 v5/200272 -0004 8OB -116 b. The Agency shall give written notice of default to the Borrower, specifying the default complained of by the Agency. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the Agency to be reasonably necessary to correct the default). d. Any failures or delays by the Agency in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the Agency in asserting any of its rights and remedies shall not deprive the Agency of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the Agency Loan Deed of Trust, prior to exercising any remedies thereunder Agency shall give Borrower written notice of such default. Borrower shall have a period of seven (7) days after such notice is given within which to cure the default prior to exercise of remedies by Agency under this Note and the Agency Loan Deed of Trust. f. If a non - monetary event of default occurs under the terms of this Note or the Agency Loan Deed of Trust, prior to exercising any remedies thereunder, Agency shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the Agency under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then Borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Agency. In no event shall Agency be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given. 24. Insurance and Condemnation. In the event of any fire or other casualty to the Project or eminent domain proceedings resulting in condemnation of the Project or any part thereof, Borrower shall have the right to rebuild the Project, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the Agency Loan in balance and rebuild the Project in a manner that provides adequate security to Agency for repayment of the Agency Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) Agency shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Project and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Agency Loan in a manner that provides adequate security for repayment of the remaining balance of the Agency Loan. F -9 DOCSOC/ 1475221 v5/200272 -0004 8OB -117 25. Force Maieure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the Agency or any other public or governmental Agency or entity (except that any act or failure to act of Agency shall not excuse performance by Agency); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the Agency and the Borrower. 26. Assignments. The Agency, and any assignee of the Agency, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 27. City and Authority Right to Enforce. The City and Authority are each intended third party beneficiaries of Agency's rights under this Note, with full rights (but no obligation) to enforce all of Borrower's obligations hereunder {Signatures on following page} F -10 DOCSOC /1475221 v5/200272 -0004 This Agency Loan Note is hereby entered into as of the date first stated hereinabove. VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership By: Foundation for Affordable Housing V, Inc. a California nonprofit public benefit corporation, its Managing General Partner Lo F -11 DOCSOC/ 1475221 v5/200272 -0004 Deborrah A. Willard, President ���j :NiJ DOCSOC/ 1475221 v5/200272 -0004 EXHIBIT G SCOPE OF WORK/BUDGET G -1 DOCSOC/ 1475221 v5/200272 -0004 EXHIBIT H MARKETING PLAN H -1 �:�� = �O I : I THIRD AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT WITH VISTA DEL RIO HOUSING PARTNERS, L.P. This THIRD AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT (the "Amendment ") is entered into as of this day of March, 2011, by and among the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic (the "Agency "), the SANTA ANA HOUSING AUTHORITY, a public body, corporate and politic (the "Authority "), and VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership ( "Vista Del Rio "). RECITALS A. The Parties entered into that certain agreement for the sale of certain real property located at 1600 W. Memory Lane by the Agency to Vista del Rio based upon the terms and conditions contained in that certain "Disposition and Development Agreement" dated as of July 20, 2009, amended by (i) that certain First Amendment to Disposition and Development Agreement dated as of March 15, 2010, and (ii) that certain Second Amendment to Disposition and Development Agreement dated as of December 20, 2010, hereinafter collectively referred to as the "Agreement." B. The Parties hereto now desire to further amend said Agreement to provide for (i) a loan of funds to Vista Del Rio by the Agency from its Low and Moderate Income Housing Fund maintained pursuant to Health and Safety Code Section 33334.2, et seq., and (ii) the Authority to provide a specified number of Project Based Section 8 vouchers to the Project, all as described in more detail below. C. All other related exhibits, attachments and documents shall be amended accordingly. D. All terms used herein shall have the meanings set forth herein, in the Loan Agreement (as revised pursuant to Section 8), and /or the Agreement as applicable. WHEREFORE, in consideration of the mutual and respective covenants and promises hereinafter contained and made, and subject to all of the terms and conditions of said Agreement as hereby amended, the parties hereto do hereby agree as follows: The Authority, who is a party to this Amendment, shall be a party to the Agreement. 2. The following definitions shall be added to the definitions contained in Section 100 of the Agreement: "`Authority' shall mean the Santa Ana Housing Authority, a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the California Housing Authority Law, Part 2 of Division 24, Section 34200, et seq. of the Health and Safety Code." "`Project Based Section 8' shall mean housing choice vouchers held by the City and /or Authority pursuant to annual and/or multi -year contribution contract(s) with HUD, which may be used to assist specific housing units as EXHIBIT 4 DOC SOC/ 1475220v4/200272 -0004 8OB -123 authorized by and subject to Section 8(o)(13) of the U.S. Housing Act of 1937, 42 U.S.C. Section 1437f(o)(13), and the implementing regulations set forth at 24 CFR Part 983, and HR3221, enacted July 30, 2008. Pursuant to Section 311.7 of this Agreement, Authority has agreed to provide no less than seven (7) but no more than ten (10) Project Based Section 8 vouchers as assistance for an equal number of Units subject to the fulfillment or waiver of the Agency's Conditions Precedent and the provisions of Section 311.7, including without limitation Vista Del Rio securing financing in accordance with Section 311. In all events, Authority's obligation to provide Project Based Section 8 assistance to the Project is expressly conditioned upon the satisfactory completion of environmental review and the Authority's receipt of a release of federal funds from HUD." 3. A new Section 311.7 is hereby added which shall read as follows: "Subject to the fulfillment or waiver of the Agency's Conditions Precedent and further subject to HUD approval and allocation of funding by HUD or a successor federal governmental agency administering the Project Based Section 8 program, Authority shall provide no fewer than seven (7) but no more than ten (10) Project Based Section 8 vouchers as assistance for an equal number of Units. The Authority's obligations pursuant to this Section 311.7 shall at all times be subject to compliance with all legal requirements of and prerequisites to the Project Based Section 8 assistance. The exact number of the Project Based Section 8 vouchers that will be provided to the Project shall be determined by the Executive Director in his or her sole and absolute discretion, based upon the financing that Vista Del Rio obtains for the Project and upon a subsidy layering review performed by the Authority and HUD (or other entity approved by HUD). The Executive Director shall also designate the specific Units which shall be assisted by Project Section 8 vouchers in his or her sole and absolute discretion. In the event Project Based Section 8 assistance is provided to HOME Units, the rent charged pursuant to the tenant rental agreement shall not exceed the Low HOME rent applicable to the Unit, pursuant to the HOME Program and the HOME Regulations." 4. The first sentence of Section 205 of the Agreement is amended to read: "The Closing of the Conveyance of the Site and the Authority's provision of Project Based Section 8 assistance to the Project are expressly conditioned upon the satisfaction (or written waiver by the benefited Party or Parties in its or their sole and absolute discretion) of the following terms and conditions within the times designated below:" 5. A new Section 309.2 is hereby added which shall read as follows: "Prevailing Wage Laws. Vista Del Rio shall carry out the construction of the Project and the overall development of the Site in conformity with all applicable federal, state and local labor laws and regulations, including, without limitation, as applicable, the requirements to pay prevailing wages 2 of 8 DOC SOC/ 1475220v4/200272 -0004 �9 *1 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 parties acknowledge that a financing structure utilizing Project Based Section 8 vouchers may trigger a requirement to pay prevailing wages and comply with Davis - Bacon, as may other federal and /or state funding sources and financing scenarios trigger compliance with applicable state and federal prevailing wage laws and regulations. The applicability of federal, state and local prevailing wage laws will be triggered by the final financing structure and sources of funding of the Project, as approved by the Executive Director pursuant to Section 311. "Vista Del Rio 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 Agency, City, and Authority make no representation, either legally and /or financially, as to the applicability or non - applicability of any federal, state and local laws to the Project or any part thereof, either onsite or offsite. Vista Del Rio expressly, knowingly and voluntarily acknowledges and agrees that Agency, City, and Authority have not previously represented to Vista Del Rio or to any representative, agent or Affiliate of Vista Del Rio, or its Contractor or any 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. "Vista Del Rio knowingly and voluntarily agrees that Vista Del Rio shall have the obligation to provide any and all disclosures or identifications 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. Vista Del Rio shall indemnify, protect, pay for, defend (with legal counsel acceptable to Agency, City and Authority) and hold harmless the Agency, City, and Authority, and their elected and appointed officers, directors, employees and agents, 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 Vista Del Rio of 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 by Davis Bacon, as the same may be amended from time to time, or any other similar law or regulation; and /or (iii) failure by Vista Del Rio to provide any required disclosure or identification as required by Labor Code Section 1781 and /or by Davis Bacon, as the same may be 3 of 8 DOC SOC/ 1475220v4/200272 -0004 �:TI :5 Py 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), Vista Del Rio 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 309.2, 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 Vista Del Rio." 6. A new Section 401.10 is hereby added which shall read as follows: "Occupancy Limits. The maximum occupancy of the Units in the Project shall not exceed such number of persons as is equal to two persons per bedroom, plus one. Thus, for the studio Units, the maximum occupancy shall not exceed two (2) persons. For the one (1) bedroom Units, the maximum occupancy shall not exceed three (3) persons. For the two (2) bedroom Units, the maximum occupancy shall not exceed five (5) persons. Notwithstanding the foregoing, Units assisted with Project Based Section 8 vouchers shall be subject to any federal occupancy standard applicable to housing so assisted." 7. Section 312 shall be replaced in its entirety with the following: "Loan Agreement. Prior to and as a condition of Closing, Vista Del Rio shall execute the Loan Agreement in substantially the form attached to the Third Amendment to Disposition and Development Agreement as Exhibit 1 which is incorporated herein by this reference ( "Loan Agreement "). The Loan Agreement shall provide for (i) the City to make a loan of One Million Five Hundred Thousand Dollars ($1,500,000.00) in federal HOME Program funds to Vista Del Rio, which shall carry a three percent (3.0 %) interest rate, and shall be a residual receipts loan; and (ii) the Agency to make a loan of Four Hundred Sixty -Nine Thousand Dollars ($469,000) from the Agency's low and moderate income housing fund, which shall carry a three percent (3.0 %) interest rate, and shall be a residual receipts loan. Vista Del Rio's obligations under the Loan Agreement shall be evidenced by two promissory notes in the respective principal amounts of One Million Five Hundred Thousand Dollars ($1,500,000.00) and Four Hundred Sixty -Nine Thousand Dollars ($469,000), and secured by separate deeds of trust in the respective amounts of One Million Five Hundred Thousand Dollars ($1,500,000.00) and Four Hundred Sixty -Nine Thousand Dollars ($469,000). The form of promissory notes and deeds of trust evidencing and securing the City /HOME Loan and Agency Loan, respectively, are attached to the Loan Agreement as Exhibits C, D, E, and F. " 4of8 DOCSOC/ 1475220v4/200272 -0004 �9 *1 8. The HOME Loan Agreement attached to the Agreement as Attachment No. 8, together with all of the exhibits thereto, is hereby deleted and replaced with the Loan Agreement, together with its exhibits, attached to this Amendment as Exhibit 1. 9. In the event any provision of or definition in the Agreement is in conflict with or contradicts Section 7, in respect of affordability requirements, use, and maintenance of the Property, the Loan Agreement shall control. 10. In the event any provision of or definition in the Agreement is in conflict with or contradicts any provision of the Loan Agreement, the Loan Agreement shall control; however, 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. 11. All other related exhibits, attachments and documents shall be amended accordingly, where necessary to implement the intent of this Amendment. 12. Except as hereinabove modified, the terms and conditions of the Agreement remain unchanged and in full force and effect. 5 of 8 DOC SOC/ 1475220v4/200272 -0004 �9 *1 IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to Disposition and Development Agreement as of the date and year first above written. ATTEST: IM Maria D. Huizar Secretary APPROVED AS TO FORM: By: Lisa E. Storck Assistant General Counsel ATTEST: By: Maria D. Huizar Secretary APPROVED AS TO FORM: Un Lisa E. Storck Assistant General Counsel DOC SOC/ 1475220v4/200272 -0004 COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA Nancy Edwards Interim Executive Director SANTA ANA HOUSING AUTHORITY Nancy Edwards Interim Executive Director 6of8 VISTA DEL RIO HOUSING PARTNERS, L.P. a California limited partnership By: Foundation for Affordable Housing V, Inc. a California nonprofit public benefit corporation, its Managing General Partner LIN 7of8 DOCSOC/ 1475220v4/200272 -0004 Deborrah A. Willard, President ���' :an J EXHIBIT 1 [Insert Loan Agreement] DOC SOC/ 1475220v4/200272 -0004 80B -130