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HomeMy WebLinkAbout FULL PACKET_2016-02-02MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA JANUARY 19, 2016 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA 5:11 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUELA. PULIDO, Mayor VINCENT F. SARMIENTO, Mayor Pro Tern ANGELICA AMEZCUA P. DAVID BENAVIDES MICHELE MARTINEZ ROMAN A. REYNA SAL TINAJERO (5:18 p.m.) COUNCILMEMBERS Absent: NONE STAFF Present: DAVID CAVAZOS, City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS — None COUNCIL RECESSED to Room 147 for Closed Session discussion at 5:12 p.m. CLOSED SESSION ITEMS - The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matters will prejudice the position of the City in existing and anticipated litigation: 1. CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Paragraph (1) of subdivision (d) of Section 54956.9 of the Government Code: 1) Tarune Dillon, John Mendoza & Ivan Nathanson v. City of Santa Ana, Orange County Superior Court Case No.: 30- 2015 - 00786940- CU- MC -CJC, CITY COUNCIL MINUTES 1 JANUARY 19, 2016 1 0A -1 2) Matt Chou, et al. v. City of Santa Ana, United States Federal Case No.: SA CV 15 -00941 3) 1901 First Street Owner, LLC V. Tustin Unified School District, Orange County Superior Court Case No.: 30- 2015 - 00803234- CU- WM -CJC 4) Live2Love v. City of Santa Ana , Orange County Superior Court Case No. 30- 2014- 00762124 -C U -M C -CJ C 5) Terra Collective v. City of Santa Ana, Orange County Superior Court Case No. 30- 2014- 0076212 3 -C U -M C -CJ C 6) Natures Holistic v. City of Santa Ana, Orange County Superior Court Case No. 30- 2015- 00782237 -C U -M C -CJ C 7) Enzoc Consulting v. City of Santa Ana, Orange County Superior Court Case No. 30- 2015- 00826605 -C U -M C -CJ C 2. CONFERENCE WITH LEGAL COUNSEL -- POTENTIAL LITIGATION Significant exposure to litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9 of the Government Code: One case 3. CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6(a): Agency Negotiators: Personnel Services Executive Director, Ed Raya Employee Organizations: Service Employees' International Union, Part - Time 4. PUBLIC EMPLOYEE APPOINTMENT pursuant to Section 54957(b)(1) of the Government Code: Title: Chief Technology Innovations Officer COUNCIL AGENDA ITEM Pursuant to Santa Ana Charter Section 411, any member of the City Council may place items on the City Council Agenda to be considered by the City Council. 5. PUBLIC EMPLOYEE — ANNUAL EVALUATION OF PERFORMANCE pursuant to Section 54957(b)(1) of the Government Code: (Councilmembers Reyna and Amezcua) Title: City Manager CITY COUNCIL MINUTES 2 JANUARY 19, 2016 1 0A -2 CLOSED SESSION REPORT - See Item 19A for any reportable actions. 'Councilmember Amezcua left the meeting at 6:40 p.m. and did not return. ADJOURNED THE CLOSED SESSION MEETING AT 6:40 P.M. AND CONVENED TO THE REGULAR OPEN MEETING. CITY COUNCIL MINUTES 3 JANUARY 19, 2016 1 0A -3 CALLED TO ORDER REGULAR OPEN MEETING COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:43 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUELA. PULIDO, Mayor VINCENT F. SARMIENTO, Mayor Pro Tern P. DAVID BENAVIDES MICHELE MARTINEZ ROMAN A. REYNA SAL TINAJERO PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS COUNCILMEMBERS Absent: ANGELICA AMEZCUA STAFF Present: DAVID CAVAZOS, City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council MAYOR PULIDO COUNCILMEMBER MARTINEZ EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to: 25 YEARS OF SERVICE Eric S. Demopoulos, Police Officer, Police Department Osvaldo Rangel, Tree Maintenance Supervisor, Public Works Agency Gail M. Woods, Executive Assistant, City Manager's Office CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER BENAVIDES to two Santa Ana AYSO teams for winning the Area 11 -K Playoffs: CITY COUNCIL MINUTES 4 JANUARY 19, 2016 1 0A -4 Under 12 Years - Boys Team Coach: Jose Hernandez; Assistant Coach Sarah Nelson Players: James Beltran; Marco Castebada; Jasper Felder; Christian Kemechs; Rogelio Lopez; Jimmy Espinosa Lucero; Sergio Macias; Derick Manzano; David Molina; Cesar Perez; Isaias Ramirez; Issac Rodriguez Under 10 Years - Girls Team Coach Eric Valle; Assistant Coach Eddy Guevera Players: Donna Van Buskirk; Jaidy Guevara; Clarrisa Huerta; Samantha Leon; Alexa Martinez; Jazmin Rodriguez; Isabella Rojas; Erica Valle PROCLAMATION presented by COUNCILMEMBER REYNA to Santa Ana College's El Don Newspaper for winning the Associated Collegiate Press National Pacemaker Awards at the annual Associated Collegiate Press /College Media Association Joint Annual Convention. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER REYNA to student journalists of El Don newspaper at Santa Ana College for their excellent writing skills: Juan A. Avila Bran; Ashley M. Binder; Jorge L. Campos; Rosalia S. Cato; Arleeny B. Escarcega; Daniel A. Garcia; Laura O. Garcia; Adrian Gonzalez; Alessandra Gonzales; Nashe E. Harley; Meghan G. Kliewer; Andrew Mata; Joanna A. Meza; Juan A. Olivares; Edgar I. Ornelas; Karla N. Ornelas; Itzel V. Quintana; Anjel Ramirez; Alex Robles; Emilio J. Rodriguez; Gracia M. Sanchez; Rogelio N. Santana; Jose E. Servin; Angela V. Truong; Kevin E. Vazquez; and Diana Viera DONATION by CITY ATTORNEY CARVALHO to Dave Anderson, Santa Ana Division Chief, Orange County Fire Authority, of smoke detectors to be distributed to the Santa Ana community. CLOSED SESSION REPORT - See Agenda Item 19A for Closed Session Report. AGENDA ITEM TAKEN OUT OF ORDER 65D. ORANGE COUNTY TRANSPORTATION AUTHORITY'S PROPOSED 2016 BUS SERVICE PLAN — City Manager's Office The following addressed the City Council on the matter: • John Palacios, representing Santa Ana Unified School District, support adoption of resolution to oppose service reductions in Santa Ana. • Gloria Castar eda, read petition from the Santa Ana Senior Center and the Southwest Senior Center opposed to any cuts to the Senior Mobility program. • Sallie Gomez, read petition from seniors in Spanish for the record. CITY COUNCIL MINUTES 5 JANUARY 19, 2016 1 0A -5 • Phil Bacerra, expressed concern with proposed elimination of bus routes 51 and 145; opined that services need to be enhanced not cut, City Council should consider approving resolution opposed to Orange County Transportation Authority (OCTA) Proposed Plan; supports expansion of Bravo and Xpress lines, modifying bus route 53 traveling to John Wayne Airport. • Claudio Gallegos, spoke in support of proposed resolution; echoed comments by Mr. Bacerra. • Tish Leon, noted that with impending OC Street Car project there should be more connecting routes and not impede ridership by reducing service; supports recommendations as proposed by Mr. Bacerra. Ken Phipps, Deputy Chief Executive Officer at OCTA, presented proposal being considered by the OCTA Board; opined that Plan is a reallocation of service to the central core. Councilmember Martinez, opined that first and last mile connections important as well as keeping shared economy in mind. Lou Correa, concerned with elimination of bus routes; requested collaborative efforts between the two agencies. Mayor Pro Tern Sarmiento, opined that OCTA to consider status quo, perception and messaging; suggested agencies discuss service delivery and impacts prior to rolling out proposal. Councilmember Benavides, pleased with proposed expansion of Bravo and xpress lanes. Mayor Pulido, noted that ridership across the Country has decreased and only ones that have not are the ones that have a street car; requested impact analysis to Santa Ana community — dollars expended, number of potential ridership, etc. Councilmember Martinez, motion to continue matter to allow Council Committee review; also, need to meet with OCTA representatives. Councilmember Benavides, substitute motion to approve matter and send message to OCTA on behalf of Santa Ana residents. Mayor Pulido, directed staff to develop proposal for consideration of options that are viable and sustainable and impacts to Santa Ana. Mayor Pro Tern Sarmiento, voiced opposition to proposed Plan absent alternatives. Councilmember Benavides, only opposed to elimination of routes. CITY COUNCIL MINUTES 6 JANUARY 19, 2016 1 0A -6 MOTION: 1. Receive and file the Proposed 2016 Bus Service Plan. 2. Adopt a resolution. RESOLUTION NO. 2016 -001 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA OPPOSING THE ORANGE COUNTY TRANSPORTATION AUTHORITY'S PROPOSED 2016 SERVICE PLAN 3. Direct the City Manager and/or designee to develop options in collaboration with OCTA officials to minimize ridership impacts in the City of Santa Ana. MOTION: Sarmiento SECOND: Martinez VOTE: AYES: Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua(1) CONSENT CALENDAR ITEMS MOTION: Approve staff recommendations on Consent Calendar Items 10A through 32A, with the following modifications: Councilmember Martinez pulled Agenda Items 20A, 2213, 2913, 31A and 31B for separate action. MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Benavides, Pulido, Martinez, Reyna, Sarmiento, Tinajero (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua (1) CITY COUNCIL MINUTES 7 JANUARY 19, 2016 1 0A -7 ADMINISTRATIVE MATTERS MINUTES 10A. MINUTES FROM THE REGULAR OPEN MEETING OF DECEMBER 15, 2015 {STRATEGIC PLAN NO. 5, 11 — Clerk of the Council Office MOTION: Approve Minutes. ORDINANCES /SECOND READING In the event a Councilmember recorded an "abstention" before consideration of the following ordinance(s) on first reading, such abstention will also be reflected in the minutes for second reading. 11A. SECOND READING ORDINANCE: REAFFIRM A BAN ON THE CULTIVATION AND DELIVERY OF MARIJUANA {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office Placed on first reading at the December 15, 2015 City Council meeting and approved by a vote of 4 -0 (Tinajero abstained; Benavides and Pulido absent) Published in the Orange County Reporter on January 8, 2015. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS -2889 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO REAFFIRM A BAN ON THE CULTIVATION AND DELIVERY OF MARIJUANA BOARDS / COMMISSIONS / COMMITTEES 13A. NOMINATE MARK MCLOUGHLIN TO PLANNING COMMISSION BY MAYOR PULIDO AS THE CITY -WIDE REPRESENTATIVE FOR A PARTIAL TERM EXPIRING DECEMBER 6, 2016 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Appoint Mark McLoughlin, Ward 3 resident, to the Planning Commission (Replaces S. Nalle). 13B. COUNCIL COMMITTEES — AGENDA AND MINUTES {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office CITY COUNCIL MINUTES 8 JANUARY 19, 2016 1 0A -8 MOTION: Receive and file. NAME MEETING DATE Finance, Economic Development & Technology 12/14/2015, 1/11/2016 Legislative (Cancellation) 12/23/2015 Development and Transportation (Cancellation) 1/7/2016 MISCELLANEOUS ADMINISTRATION 19A. CONFIRMATION OF CLOSED SESSION ACTION(S) — City Attorney's Office MOTION: Approve, as follow: 1. CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Paragraph (1) of subdivision (d) of Section 54956.9 of the Government Code - Direction provided to legal counsel on pending litigation. 2. CONFERENCE WITH LEGAL COUNSEL -- POTENTIAL LITIGATION Significant exposure to litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9 of the Government Code — Matter continued. 3. CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6(a) — Matter continued. 4. PUBLIC EMPLOYEE APPOINTMENT pursuant to Section 54957(b)(1) of the Government Code — Confirmed appointment of Chief Technology Innovations Officer. 5. PUBLIC EMPLOYEE — ANNUAL EVALUATION OF PERFORMANCE pursuant to Section 54957(b)(1) of the Government Code: City Manager — Authorized performance bonus of 5% and approved by 5 -2 vote (Martinez and Pulido dissented). 19B. EXCUSED ABSENCES — NONE 19C. STRATEGIC PLAN MONTHLY REPORT FOR DECEMBER 2015 {STRATEGIC PLAN NO. 5, 11 - City Manager's Office MOITON: Receive and file. 19D. DESTRUCTION OF OBSOLETE CITY RECORDS {STRATEGIC PLAN NO. 5, 11 — (Community Development Agency and Finance Management Services Agency) - Clerk of the Council Office CITY COUNCIL MINUTES 9 JANUARY 19, 2016 1 0A -9 MOTION: Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2013 -014. The Citywide Records Retention Schedule has specific retention periods for many City documents. The Schedule is modeled after the California Secretary of State's sample for local government and incorporates other statutory periods applicable to Santa Ana. These are minimum retention periods. Each department makes discretionary decisions on whether to retain records past the minimum requirements. 19E. PUBLIC WORKS AGENCY STATUS OF PROJECTS - MONTHLY CAPITAL IMPROVEMENT PROGRAM EXECUTIVE REPORT FOR DECEMBER 2015 {STRATEGIC PLAN NO. 5, 11 - Public Works Agency li7[�j�[dd1i:?=Vr_1FTT1 *film BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS MOTION: 1. Authorize the City Manager and Clerk of the Council to award a contract to Siemens Industry, Inc., the lowest responsive bidder, in accordance with the bid in an amount of $596,076 and authorize the City Manager and Clerk of the Council to execute the contract, subject to non - substantive changes approved by the City Manager and City Attorney. 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2016 -074 - Recognizing $101,822 from the Highway Safety Improvement Program funds into the Select Street Construction revenue account and appropriating the same to the Select Street Construction Expenditure account. 3. Approve the Project Cost Analysis for a total estimated project delivery cost of $745,096, which includes the contract base amount, administration, inspection, testing, and a 10 percent contractual CITY COUNCIL MINUTES 10 JANUARY 19, 2016 1 0A -10 contingency of $59,608, subject to non - substantive changes approved by the City Manager and City Attorney. MOTION: Martinez VOTE: AYES: NOES: ABSTAIN ABSENT: FyXd•7�1�7■:Z�iF19CC� Benavides, Pulido, Martinez, Reyna, Sarmiento, Tinajero (6) None (0) None (0) Amezcua (1) SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES 22A. SPEC. NO. 15 -131 — EMERGENCY FUELING SERVICES OF COMPRESSED NATURAL GAS (CNG) POWERED CITY FLEET {STRATEGIC PLAN NO. 6, 1 C) - Finance & Management Services MOTION: Amend the contract with Timco CNG to increase the aggregate limit by $50,000 in an annual amount not to exceed $75,000, subject to non - substantive changes approved by the City Manager and City Attorney. MOTION: Authorize the City Manager and Clerk of the Council to award contracts to Aqua- Metric Sales Co., Badger Meter, Inc., H.D. Supply Waterworks, and Mueller System, LLC for a one -year period beginning February 1, 2016 and expiring January 31, 2017, with provisions for four one -year renewals exercisable by the City Manager, in an annual amount not to exceed $140,000, subject to non - substantive changes approved by the City Manager and City Attorney. MOTION: Martinez VOTE: AYES: NOES: ABSTAIN FyXd•7�1�7■:Z�iF19CC� Benavides, Pulido, Martinez, Reyna, Sarmiento, Tinajero (6) None (0) None (0) 11 1 0A -11 JANUARY 19, 2016 ABSENT: Amezcua (1) 22C. SPEC. NO. 15 -124 - TACTICAL ELECTRONIC SEARCH SYSTEMS FOR POLICE FIELD OPERATIONS {STRATEGIC PLAN NO. 1, 51 (Police Department) - Finance & Management Services MOTION: Authorize a one -time purchase of two tactical electronic search systems in an amount not to exceed $34,850 and a $25,000 contract for flares and various police recruit supplies with Adamson Police Products for a total amount not to exceed $59,850, subject to non - substantive changes approved by the City Manager and City Attorney. PROJECTS /CHANGE ORDERS 23A. AWARD CONTRACT FOR THE SANTA ANA STADIUM STRUCTURAL CONCRETE REPAIRS (PROJECT 16 -2656) {STRATEGIC PLAN NO. 6, 113 & 1G) - Public Works Agency and Parks, Recreation & Community Services Agency MOTION: 1. Authorize the City Manager and Clerk of the Council to award and execute a contract to Metro Builders & Engineers Group, Ltd., the lowest responsive bidder, in accordance with the bid in the amount of $448,339.60 and the Additive Alternate Two of $20,300, for a contract total of $468,639.60, for the Santa Ana Stadium Structural Concrete Repairs, subject to non - substantive changes approved by the City Manager and the City Attorney. 2. Approve the Project Cost Analysis for a total estimated project delivery cost of $689,300, which includes the contract base bid amount, administration, inspection and testing, and a contractual contingency of $130,992, subject to non - substantive changes approved by the City Manager and City Attorney. AGREEMENTS 25A. AGMT NO. 2016 -001 - DONATION TO SUPPORT FAMILY LITERACY {STRATEGIC PLAN NO. 5, 41 - City Manager's Office MOITON: Authorize the City Manager and Clerk of the Council to execute an agreement with Latino Health Access for a one -time donation amount of $1,000, subject to non - substantive changes approved by the City Manager and the City Attorney. CITY COUNCIL MINUTES 12 JANUARY 19, 2016 1 0A -12 25B. AGMT NO. 2016 -002 - LANDSCAPE SERVICES IN CITY PARKS AND FACILITIES {STRATEGIC PLAN NO. 6, 1 B) - Parks, Recreation & Community Services Agency and Police Department MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Merchants Landscape Services, Inc. to provide landscape maintenance services in District 1 in an annual amount not to exceed $204,943, and in District 4 in an annual amount not to exceed $574,976, for a total annual of $779,919, which includes a 10% contingency, for a term from February 1, 2016 through January 31, 2018, for a total contract amount of $1,559,838 during FY 15 -16, FY 16 -17, and FY 17 -18, with two, one -year renewal options, subject to non - substantive changes approved by the City Manager and City Attorney. 25C. INFIELD MAINTENANCE SERVICES IN CITY PARKS {STRATEGIC PLAN NO. 6, 1 B) - Parks, Recreation & Community Services Agency MOTION: 1. AGMT NO. 2016 -003 - Authorize the City Manager and Clerk of the Council to execute an agreement with Major League Infields, Inc. to provide infield maintenance services in District 1 in an annual amount not to exceed $104,623, which includes a 10% contingency, for a term from February 1, 2016 through January 31, 2018, with two, one -year renewal options, subject to non - substantive changes approved by the City Manager and City Attorney. 2. AGMT NO. 2016 -004 - Authorize the City Manager and Clerk of the Council to execute an agreement with Professional Sports Field Maintenance, Inc. to provide infield maintenance services in District 4 in an annual amount not to exceed $114,604, which includes a 10% contingency, for a term from February 1, 2016 through January 31, 2018, with two, one -year renewal options, subject to non - substantive changes approved by the City Manager and City Attorney. 25D. AGMT NO. 2016 -005 - AMENDMENT - INMATE FOOD SERVICES {STRATEGIC PLAN NO. 1, 3A) - Police Department MOTION: Authorize the City Manager and Clerk of the Council to execute the attached one -year agreement amendment with Aramark Correctional Services, Inc., for the period of February 1, 2016 through January 31, 2017, adding an additional $1,452,951 plus a 15% contingency ($217,943) to the existing agreement amount of $1,412,140 (total amendment amount of $1,670,894), for a total not to exceed agreement amount of $3,083,034, CITY COUNCIL MINUTES 13 JANUARY 19, 2016 1 0A -13 subject to non - substantive changes approved by the City Manager and City Attorney. 25E. AGMT NO. 2016 -006 - PROVIDE STAFFING STUDY SERVICES FOR POLICE INVESTIGATIVE PERSONNEL {STRATEGIC PLAN NO. 1, 1F) - Police Department MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with the University of North Texas, for the period of January 19, 2016 through June 15, 2016, for professional services to provide a written staffing report, including staffing recommendations, data analysis, and a five -year strategic staffing plan for the Santa Ana Police Department's Investigations Bureau, in an amount not to exceed $24,887, subject to non - substantive changes approved by the City Manager and City Attorney. 25F. AGMT NO. 2016 -007 - DONATION TO SUPPORT A HOLIDAY TOY DRIVE {STRATEGIC PLAN NO. 5, 41 - City Manager's Office MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Regents of the University of California at Irvine for a one -time donation amount of $300, subject to non - substantive changes approved by the City Manager and the City Attorney. 25G. AGMT NO. 2016 -008 - AMENDMENT - HARBOR BOULEVARD TRAFFIC SIGNAL SYNCHRONIZATION (PROJECT NO. 156828) {STRATEGIC PLAN NO. 6, 1 B) - Public Works Agency MOTION: Approve an amendment to the professional engineering services agreement with Iteris, Inc., to integrate an emergency vehicle preemption system as part of the Harbor Boulevard Corridor Traffic Signal Synchronization Project at the cost of $89,100 and an additional 12 months, which increases the total agreement amount to $844,100 and extends the expiration date to December 31, 2019, subject to non - substantive changes approved by the City Manager and City Attorney. 25H. RIGHT -OF -WAY SERVICES (NONGENERAL FUND) {STRATEGIC PLAN NO. 6, 1 G) - 1) - Public Works Agency MOTION: 1. AGMT NO. 2016 -009 — Authorize the City Manager and Clerk of the Council to amend the agreement with Epic Land Solutions in an amount of $100,000, for a revised total contract amount not to exceed CITY COUNCIL MINUTES 14 JANUARY 19, 2016 1 OA -14 $400,000, with no change to the August 5, 2018, expiration date subject to non - substantive changes approved by the City Manager and City Attorney. 2. AGMT NO. 2016 -010 — Authorize the City Manager and Clerk of the Council to amend the agreement with Overland, Pacific & Cutler in an amount of $150,000, for a revised total contract amount not to exceed $450,000, with no change to the August 5, 2018, expiration date subject to non - substantive changes approved by the City Manager and City Attorney. 251. AGMT NO. 2016 -011 - PUMP STATION OPERATIONAL PLAN AND SYSTEM TESTING SERVICES (NONGENERAL FUND) {STRATEGIC PLAN NO. 6, 1C) - Public Works Agency MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Enterprise Automation Inc., for a three -year period expiring January 31, 2019, with provisions for a one -year renewal option exercisable by the City Manager and City Attorney, in the amount of $233,923, with a 15 percent contingency, for a total amount not to exceed $269,012 subject to non - substantive changes approved by the City Manager and City Attorney. MISCELLANEOUS - BUDGET 29A. 2015 -2016 ANNUAL ACTION PLAN SUBSTANTIAL AMENDMENT {STRATEGIC PLAN NO. 51 - Community Development Agency Community Redevelopment and Housing Commission approved recommended action on January 13, 2016 by a vote of 4:0 (Gomez absent). MOTION: Approve a Substantial Amendment to the 2015 -2016 Annual Action Plan for the reallocation of HOME Investment Partnership Grant and Community Development Block Grant funds, and authorize its submission to the U.S. Department of Housing and Urban Development. Mayor Pro Tern Sarmiento, requested transparent process and policy for future council requests, suggested council committee review. MOTION: Authorize the expenditure of $15,000 for audio - visual equipment and subsequent development of an equipment reservation CITY COUNCIL MINUTES 15 JANUARY 19, 2016 1 0A -15 program, subject to non - substantive changes by the City Manager and City Attorney. MOTION: Sarmiento SECOND: Tinajero VOTE: AYES: Benavides, Reyna, Sarmiento, Tinajero (4) NOES: Martinez, Pulido (2) ABSTAIN: None (0) ABSENT: Amezcua (1) LAND USE MATTERS CONDITIONAL USE PERMITIVARIANCES Planning Commission approved recommended action on December 14, 2015, by a vote of 5 -0 (Alderete absent). Councilmember Martinez, concerned with cell towers not retrofitted. MOTION: Receive and file the staff report approving Conditional Use Permit No. 2015 -20 as conditioned. MOTION: Benavides SECOND: Reyna VOTE: AYES: Benavides, Pulido, Reyna, Sarmiento, Tinajero (5) NOES: Martinez (1) ABSTAIN: None (0) ABSENT: Amezcua (1) CITY COUNCIL MINUTES 16 JANUARY 19, 2016 1 0A -16 Planning Commission approved recommended action on December 14, 2015, by a vote of 4 -1 (Bacerra opposed, Alderete absent). Councilmember Martinez, concerned with cell towers not retrofitted. Councilmember Benavides, suggested staff work with application to provide for additional screening at facility and /or around equipment. MOTION: Receive and file the staff report approving Conditional Use Permit No. 2015 -23 as conditioned. MOTION: Benavides VOTE: AYES: NOES: ABSTAIN: ABSENT: TENTATIVE PARCEL /TRACT MAPS SECOND: Reyna Benavides, Pulido, Reyna, Sarmiento, Tinajero (5) Martinez (1) None (0) Amezcua (1) 32A. TENTATIVE TRACT MAP NO. 2015 -04 (COUNTY MAP NO. 17715) AND DENSITY BONUS AGREEMENT NO. 2015 -01 TO ALLOW A SUBDIVISION FOR FIVE SINGLE - FAMILY CONDOMINIUM UNITS AT 4010 WEST MCFADDEN AVENUE - HABITAT FOR HUMANITY, APPLICANT {STRATEGIC PLAN NOS. 3, 2, 5; 5, 3, 41 - Planning and Building Agency Planning Commission approved recommended action on December 14, 2015, by a vote of 5 -0 ( Alderete absent). MOTION: 1. Receive and file the staff report approving Tentative Tract Map No. 2015 -04 as conditioned and with the additional unit permitted by Density Bonus Agreement No. 2015 -01 and no other deviations from the City Zoning Ordinance. 2. AGMT NO. 2016 -012 - Authorize the City Manager and Clerk of the Council to execute the attached Density Bonus Agreement with Habitat for Humanity of Orange County, subject to non - substantive changes approved by the City Manager and City Attorney for the development of five (5) affordable for -sale units. ""END OF CONSENT CALENDAR" CITY COUNCIL MINUTES 17 JANUARY 19, 2016 1 0A -17 BUSINESS CALENDAR ITEMS RESOLUTIONS 55A. CONTINUE MATTER: ESTABLISH A HOTEL DEVELOPMENT INCENTIVE PROGRAM {STRATEGIC PLAN NO. 3, 3C) - Community Development Agency Matter continued for consideration 30 days from the November 3, 2015 City Council meeting by a vote of 7 of 0. Matter continued from the December 1, 2015 at the request of staff. MOTION: Continue consideration of item to the February 16, 2016 City Council Meeting at the request of staff. MOTION: Martinez VOTE: AYES: NOES: ABSTAIN ABSENT: SECOND: Benavides Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (6) None (0) None (0) Amezcua (1) 55B. POTENTIAL FORMATION OF THE WARNER INDUSTRIAL COMMUNITY ASSESSMENT DISTRICT (NON- GENERAL FUND) {STRATEGIC PLAN NO. 6, 1 G) - Public Works Agency MOTION: Adopt resolutions. 1. RESOLUTION NO. 2016 -002 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA, ADOPTING A MAP SHOWING THE PROPOSED BOUNDARIES OF ASSESSMENT DISTRICT NO. 2015 -01 (WARNER INDUSTRIAL COMMUNITY 2. RESOLUTION NO. 2016 -003 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA PASSING UPON AND GIVING PRELIMINARY APPROVAL TO THE ENGINEER'S REPORT OF THE ASSESSMENT ENGINEER, SETTING THE TIME AND PLACE FOR A PUBLIC HEARING AND ORDERING THE INITIATION OF ASSESSMENT CITY COUNCIL MINUTES 18 JANUARY 19, 2016 1 0A -18 BALLOT PROCEDURES FOR ASSESSMENT DISTRICT NO. 2015 -01 (WARNER INDUSTRIAL COMMUNITY) a. Proposed Proposition 218 Election and Public Hearing date to be held on: April 5, 2016 3. RESOLUTION NO. 2016 -004 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA, ESTABLISHING LOCAL PROCEDURES TO IMPLEMENT REQUIREMENTS OF ARTICLE XIIID OF THE CONSTITUTION OF THE STATE OF CALIFORNIA AND THE PROPOSITION 218 OMNIBUS IMPLEMENTATION ACT APPLICABLE TO ASSESSMENT BALLOT PROCEEDINGS MOTION: Sarmiento SECOND: Martinez VOTE: AYES: Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua(1) 55C. AMENDMENT TO CLASSIFICATION AND COMPENSATION PLAN TO INCREASE SALARY OF DEPUTY CITY MANAGER TO PARALLEL CURRENT LABOR MARKET SALARY RATE {STRATEGIC PLAN NO. 7, 61 - Personnel Services Agency MOTION: Adopt a resolution. RESOLUTION NO. 2016 -005 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO AMEND RESOLUTION NO. 2015 -026 TO PROVIDE AN INCREASE IN SALARY FOR THE UNREPRESENTED EXECUTIVE MANAGEMENT CLASSIFICATION OF DEPUTY CITY MANAGER MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua(1) CITY COUNCIL MINUTES 19 JANUARY 19, 2016 1 0A -19 55D. RESOLUTION AND APPROPRIATION ADJUSTMENT ACCEPTING ADDITIONAL FISCAL YEAR 2015 HOMELAND SECURITY GRANT PROGRAM FUNDS {STRATEGIC PLAN NO. 1, 2 & 61 - Police Department MOTION: 1. Adopt a resolution. RESOLUTION NO. 2016 -006 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER AND THE CHIEF OF POLICE OR THEIR DESIGNEE(S) TO AMEND THE CURRENT AGREEMENT WITH THE STATE OF CALIFORNIA GOVERNOR'S OFFICE OF EMERGENCY SERVICES FOR THE FY2015 URBAN AREA SECURITY INITIATIVE FUNDING PROGRAM TO ACCEPT ADDITIONAL FUNDS AND APPROPRIATION ADJUSTMENT a. AGMT NO. 2016 -013 — Amendment - With the State of California in an amount of $565,000. 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2016 -073 - Accept additional FY 2015 Urban Areas Security Initiative funds in an amount of $565,000 in revenue account and appropriate same to expenditure accounts in the respective fiscal year(s). MOTION: Benavides VOTE: AYES: NOES: ABSTAIN ABSENT: FyXdS]ZIDllt.YTri1C- i re, Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) None (0) None (0) Amezcua (1) ADMINISTRATIVE MATTERS - BUSINESS 60A. APPOINT MEMBER TO THE ORANGE COUNTY VECTOR CONTROL BOARD {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office Councilmember Reyna, expressed interest in serving on the Orange County Vector Control Board. CITY COUNCIL MINUTES 20 JANUARY 19, 2016 1 OA -20 City Council unanimously agreed that elected officials would be given deference prior to members of the public. Councilmember Tinajero, Mayor Pro Tern Sarmiento and Mayor Pulido thanked Cecilia Aguinaga for service on the Board. Cecilia Aguinaga, thanked the City Council for their support. MOTION: Appoint Councilmember Roman Reyna to the Orange County Vector Control for a two (2) term expiring in January of 2018. MOTION: Benavides VOTE: AYES: NOES: ABSTAIN: ABSENT: REPORTS SECOND: Tinajero Benavides, Martinez, Pulido, Sarmiento (5) None (0) Reyna (1) Amezcua (1) Tinajero, 65A. ANNUAL REVIEW OF COUNCIL COMMITTEES AND APPOINTEES {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office Consideration of matter continued from the December 15, 2015 City Council meeting by a vote of 5 -0 ( Benavides and Pulido absent). l,7101110JdA 1. Reviewed the current list of established Council Committees and did not make any changes. 2. Reviewed the current list of appointees to Council Committees and made the following changes: Councilmember Martinez resigned from Development and Transportation Committee and from the Legislative Committee; and Councilmember Amezcua resigned from Public Safety /Neighborhood Improvement /Code Enforcement Committee and added to the Legislative Committee. MOTION: Martinez SECOND: Reyna CITY COUNCIL MINUTES 21 JANUARY 19, 2016 1 OA -21 VOTE: AYES: Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua(1) 65B. REVIEW OF REGIONAL BOARD APPOINTEES {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office Consideration of matter continued from the December 15, 2015 City Council meeting by a vote of 5 -0 (Benavides and Pulido absent). MOTION: Reviewed the regional board appointment list and did not make any changes. MOTION: Martinez SECOND: Tinajero VOTE: AYES: Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua(1) 65C. SUMMARY OF FIRE SERVICES REPORT {STRATEGIC PLAN NO. 5, 11 - Fire Department MOTION: Receive and file. MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) CITY COUNCIL MINUTES 22 JANUARY 19, 2016 1 OA -22 ABSENT: Amezcua(1) PUBLIC HEARINGS 75A. RESOLUTION APPROVING THE ISSUANCE OF TAX - EXEMPT OBLIGATIONS AND AUTHORIZATION TO APPROVE JOINT EXERCISE OF POWERS AGREEMENT - GUEST HOUSE APARTMENTS PROJECT LOCATED AT 2151 EAST FIRST STREET {STRATEGIC PLAN NO. 5, 31 - Community Development Agency Legal Notice published in the Orange County Reporter January 4, 2016. Mayor Pulido opened the Hearing closed. MOTION: 1. Adopt a resolution. There were no speakers and the Hearing RESOLUTION NO. 2016 -007 — A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE ISSUANCE BY THE CALIFORNIA PUBLIC FINANCE AUTHORITY OF MULTIFAMILY HOUSING REVENUE BONDS IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $15,000,000 FOR THE PURPOSE OF FINANCING OR REFINANCING THE ACQUISITION AND REHABILITATION OF GUEST HOUSE APARTMENTS AND CERTAIN OTHER MATTERS RELATING THERETO, AND AUTHORIZING THE EXECUTION OF THE JOINT EXERCISE OF POWERS AGREEMENT RELATING TO THE CALIFORNIA PUBLIC FINANCE AUTHORITY TO BECOME AN ADDITIONAL MEMBER FOR THE PURPOSE OF APPROVING BONDS FOR THE GUEST HOUSE APARTMENTS PROJECT LOCATED AT 2151 EAST FIRST STREET, SANTA ANA 2. AGMT NO. 2016 -014 - Authorize the City Manager and Clerk of the Council to execute a Joint Exercise of Powers Agreement relating to the California Public Finance Authority to serve as the municipal issuer of the bonds for the purpose of approving bonds for the Guest House Apartment Project, subject to non - substantive changes approved by the City Manager and City Attorney. MOTION: Martinez VOTE: AYES: CITY COUNCIL MINUTES FyXdS]ZIDllt.YTri1C- i re, Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) 23 1 OA -23 JANUARY 19, 2016 NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua(1) 75B. AMENDMENT APPLICATION NO. 2015 -02 TO REZONE THREE PROPERTIES FROM URBAN NEIGHBORHOOD -2 (UN -2) TO OPEN SPACE (OS) AT 710 -720 EAST SIXTH STREET - SANTA ANA HOUSING AUTHORITY, APPLICANT {STRATEGIC PLAN NO. 5, 41 - Planning and Building Agency Planning Commission approved recommended action on December 14, 2015 by a vote of 5 -0 (Alderete absent). Legal Notice published in the Orange County Reporter on January 8, 2016 and notices mailed on January 8, 2016. Mayor Pulido opened the Hearing. There were no speakers and the Hearing closed. MOTION: Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS -2890 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REZONING PROPERTIES LOCATED AT 710, 714 AND 720 EAST SIXTH STREET FROM SPECIFIC DEVELOPMENT NO. 84 /URBAN NEIGHBORHOOD -2 TO SPECIFIC DEVELOPMENT NO. 84 /OPEN SPACE (AA NO. 2015 -02) MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua(1) CITY COUNCIL MINUTES 24 JANUARY 19, 2016 1 OA -24 75C. ZONING ORDINANCE AMENDMENT NO. 2015 -04 TO UPDATE THE WATER EFFICIENT LANDSCAPE ORDINANCE {STRATEGIC PLAN NO. 5, 21 - Planning and Building Agency Planning Commission approved recommended action on December 14, 2015 by a vote of 5 -0 (Alderete absent). Legal Notice published in the Orange County Reporter on January 8, 2016 and notices mailed on January 8, 2016. Mayor Pulido opened the Hearing closed. MOTION: There were no speakers and the Hearing 1. Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS -2891 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 41 OF THE SANTA ANA MUNICIPAL CODE TO UPDATE THE WATER EFFICIENT LANDSCAPE ORDINANCE 2. Adopt a resolution. RESOLUTION NO. 2016 -008 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADOPTING GUIDELINES FOR IMPLEMENTATION OF THE SANTA ANA WATER EFFICIENT LANDSCAPE ORDINANCE MOTION: Martinez SECOND: Reyna VOTE: AYES: Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua(1) COUNCIL AGENDA ITEMS Pursuant to Santa Ana Charter Section 411, any member of the City Council may place items on the City Council Agenda to be considered by the City Council. 85A. RESOLUTION OF THE CITY COUNCIL OF SANTA ANA IN SUPPORT OF THE HOUSING FUTURES INITIATIVE BY THE BUILDING INDUSTRY CITY COUNCIL MINUTES 25 JANUARY 19, 2016 1 OA -25 ASSOCIATION ORANGE COUNTY CHAPTER — Mayor Pro Tern Sarmiento and Coucilmember Martinez Mayor Pro Tern Sarmiento, summarized request for consideration to approve resolution. Councilmember Martinez, noted that City policy changes align with proposed resolution as recommended by the Building Industry Association (BIA). MOTION: Adopt a resolution. RESOLUTION NO. 2016 -009 — A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA, IN SUPPORT OF THE HOUSING FUTURES INITIATIVE BY THE BUILDING INDUSTRY ASSOCIATION ORANGE COUNTY CHAPTER MOTION: Sarmiento SECOND: Martinez VOTE: AYES: Benavides, Martinez, Pulido, Reyna, Tinajero, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Amezcua(1) CITY COUNCIL RECESSED AT 9:03 P.M. TO THE HOUSING AUTHORITY MEETING AND RECONVENED THE CITY COUNCIL MEETING AT 9:04 P.M. WITH SAME MEMBERS PRESENT. COMMENTS PUBLIC COMMENTS • Ilya Tseglin, noted that reason for addressing the City Council is to protect his son from discrimination. • Robert Tseglin, commented that police department staff responsible to investigate matter affecting brother. • Former State Senator Joe Dunn, offered comment on OCTA proposed plan; need to provide best service to our senior community; need to keep them first and foremost. • Tish Leon, concerned with proposed Senior Mobility Program service reductions. o Mayor Pulido, noted that reductions will only affect trips to casinos and wineries and not basic needs and local attractions. CITY COUNCIL MINUTES 26 JANUARY 19, 2016 1 OA -26 • Rick Niedermayer, concerned with increased graffiti at Windsor Neighborhood Association at Centennial Park; restroom facilities need to be supplied. • Luis Aleman, read remainder of letter as submitted by the senior center participants. • Esther Berber, shared experience using senior mobility program; opposed to any reductions. ' Councilmember Tinajero left the meeting at 9:10 p.m. and did not return 90A. CITY MANAGER'S COMMENTS • Thanked the City Council for support over past two years ; and • Noted upsurge in rental property rates and demand in Santa Ana; will discuss when meeting with Standard and Poor representatives on credit rating analysis, 90B. CITY COUNCILMEMBER COMMENTS Councilmember Martinez: • Noted for the record that she is on a month to month rental agreement to avoid potential conflicts of interest; • Commented on strong role and impact of millennials to economy, housing, etc.; • Noted increase of violent crimes across the Country; Police Chief to discuss factors affecting trend and public policy effects; need to advocate; • Reflected on global economy need to be aware of impacts to our local economy and conservative policies; increased business licenses in Santa Ana; and • Wished all a Happy New Year; thanked staff for efforts and look forward to going out into community and meeting with residents and businesses. Mayor Pro Tern Sarmiento: • New Year greetings to all; • Noted that Public Safety Council Committee to address violent crime rate increases; optimistic about efforts to protect community and enhance services; • Invited all to participate in upcoming Relay for Life event in April; and • Requested meeting be adjourned in memory of Catalina Munoz; reflected on her efforts to better the Delhi community. Councilmember Reyna: • Wished all a Happy New Year; • Congratulated Councilmember Benavides on his recent marriage; • Encouraged all to shop in Santa Ana as Valentine's Day approaches; • Urged all to continue to conserve water; CITY COUNCIL MINUTES 27 JANUARY 19, 2016 1 OA -27 • Connect to Council hosting Community Police Forum on January 30th at Godinez High School and; • Thanked service of his executive assistant, Gail Woods for 25 years of service; • Requested service announcement be sent out on upcoming public hearing by Orange County Transportation Authority board on proposed plan; and • Announced that Relay for Life hosting Kick -Off meeting on January 29th. Councilmember Benavides: • Happy New Year to all; • Recently enjoyed Monthly Art Walk; invited all to support our local economy; • Asked staff to address graffiti issue raised by resident; • Noted that City Hall accessible through social media and applications; encouraged all to download app and stay informed; • Welcomed new Chief Information and Technology Officer; look forward to improvements; • Thanked City Manager for fiscal responsibility and added services; and • Commended staff for efforts last year; look forward to New Year. Mayor Pulido: • Adjourned meeting in memory of Rosa Penaflor, Anthony "Tony" Hauck, Carlos Amezcua, and Catalina Munoz; • Asked City Manager to work with OCTA officials to develop alternatives on proposed Plan; requested staff accelerate resolution of senior mobility program. ADJOURNED- 9:46 p.m. - The next meeting of the City Council is scheduled for Tuesday, February 2, 2016 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting at 5:45 p.m. in the Council Chamber, 22 Civic Center Plaza, Santa Ana, California. Adjourned Meeting in Memory of Rosa Penaflor, Anthony "Tony" Hauck, Carlos Amezcua, and Catalina Munoz Maria D. Huizar, Clerk of the Council FUTURE AGENDA ITEMS CITY COUNCIL MINUTES 28 JANUARY 19, 2016 1 OA -28 Community Engagement Plan General Plan Update CITY COUNCIL MINUTES 29 JANUARY 19, 2016 1 OA -29 1 OA -30 CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: ORDINANCE SECOND READING: AMENDMENT APPLICATION NO. 2015 -02 TO REZONE THREE PROPERTIES FROM URBAN NEIGHBORHOOD -2 (UN -2) TO OPEN SPACE (OS) AT 710 -720 EAST SIXTH STREET - SANTA ANA HOUSING AUTHORITY, APPLICANT (STRATEGIC PLAN NO. 5, 1) CITY MANAGER RECOMMENDED ACTION Place ordinance on second reading and adopt. CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2n' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER DISCUSSION On January 19, 2016, the following Ordinance was introduced for first reading and City Council authorized publication of title by a vote of 6 -0 (Amezcua absent): ORDINANCE NO. NS -2890 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REZONING PROPERTIES LOCATED AT 710, 714 AND 720 EAST SIXTH STREET FROM SPECIFIC DEVELOPMENT NO. 84 /URBAN NEIGHBORHOOD -2 TO SPECIFIC DEVELOPMENT NO. 84 /OPEN SPACE (AA NO. 2015 -02) STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #1 (Establish a comprehensive community engagement initiative to expand access to information and create opportunities for stakeholders to play an active role in discussing public policy and setting priorities). FISCAL IMPACT There is no fiscal impact associated with this action. Maria D. Huizar, Clerk of the Council ATTACHMENT: Ordinance No. NS -2890 11 A -1 11 A -2 LS 12.7.15 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REZONING PROPERTIES LOCATED AT 710, 714 AND 720 EAST SIXTH STREET FROM SPECIFIC DEVELOPMENT NO. 84 /URBAN NEIGHBORHOOD -2 TO SPECIFIC DEVELOPMENT NO. 84 /OPEN SPACE (AA NO, 2015 -02) THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana does hereby find, determine and declare as follows: A. Amendment Application No. 2015 -02 has been filed with the City of Santa Ana to change the zoning district designation of certain real property located at 710, 714 and 720 East Sixth Street from Urban Neighborhood -2 to Open Space of the Specific Development No. 84 (SD -84) zoning district. The new zoning designation would allow the development of a public park to be built on the 0.43 acre parcels of land. B. The Planning Commission of the City of Santa Ana held a duly noticed public hearing on December 14, 2015, on Amendment Application No. 2015 -02 and recommended that the City Council adopt an ordinance approving Amendment Application No. 2015 -02, which is consistent with the General Plan land use designation for the parcels. C. This Council, prior to taking action on this ordinance, held a duly noticed public hearing on January 19, 2016. D. The City Council also adopts as findings all facts presented in the Request for Council Action dated January 19, 2016 accompanying this matter. E. For these reasons, and each of them, Amendment Application No. 2015 -02 is hereby found and determined to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare. 11 A -3 LS 12.7.15 Section 2. The City Council has reviewed and considered the information contained in the CEQA analysis prepared with respect to this project. The City Council has, as a result of its consideration of the record as a whole 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, General Rule Exemption No. 2015 -115 meets all requirements of CEQA. Section 3. The real properties located at 710, 714 and 720 East Sixth Street in Santa Ana are hereby reclassified from Specific Development No. 84 (SD -84) /Urban Neighborhood -2 to Specific Development No. 84 (SD -84) /Open Space. An amended Sectional District Map, showing the above described change in use district designation, is hereby approved and attached hereto as Exhibit "A" and incorporated by this reference as though fully set forth herein. 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 2016. APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By:4,��c Lisa Storck Assistant City Attorney 11 A -4 Miguel A. Pulido Mayor LS 12.7.15 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 11 A -5 cs cs — � F; '1CJ 1611 �IJ � cs � cs � '■ 5 16n155 RI PI 2 RI . Cs 0�. o a e R] IN 3 11 ST A GSM Si '� "M x N C5 m `.I® uTN T 11TH z IN a cs3 cs um si �ifi I uNI xT aT $ vusbuoiav vc IIC� P: UNI "ary�x lY RI cs RI t VN2 CS N4RY_SN iLii 'ofsjo -j 'r- "t VN1 UNI UNI um UN3. w �/1 _ MSw.ucTON v UNI UNI UN2 UN1 UNt . i mZ_ ■= �� 9 UNI UN2 �u 1 UN ^ UN UNI '■ i .y xA C UNI UNt UNIT i' UN2 ne UNIT UNI i LV F] UNI vi UNI o us z Olt �Rd f'�'= �WWi� Rp9N2 A 5 UN1 Fri `\ to Sy5pp,,TT�Si ` $.qM uN1 ON' PER t Y'� I U1j �O �F61 UN2 UNI ON' Our ' rA3POM51 Q "I! aw urt 006 `�� UO2 _ 3 UN2 `� ' nRJ 3T �9R] IIII' = 9^���N�e VN2 UN2 \� Ron � ®s G, uNI JO uN2 I ®; . 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N uvR mW UN2 •6 ®CG x 1ST,ST 'ltn � e® r4� Mai C3102 & ; m g 'nl MI 7 a OEM Santa Ana Zoning Designations I Description Firm mrql�, At General Agricultural DT - Downtown R4 Suburban Apadmenl C1 Community Commercial GC Government Center RE Residential Estate C1 -MD Community Commercial - Museum Distinct M1 Light Industrial SD Specific Development C2 General Commercial M2 Heavy lndustnal SP Specific Plan C4 Planned Shopping Center O Open Space TV Transit Village C5 Arterial Commercial P Professional UC Urban Center CDR Corridor R1 Single - Family Residence UN1 Urban Neighborhood CR Commercial Residential R2 Two - Family Residence UN2 Urban Neighborhood C -SM South Main Street Commercial Distinct R3 Mulliple- Family Residence i— EXHIBIT A OCJOO En Shan. ET,4a CXm mmim AS EanRwannl Feet 11 A -6 Orange a 1 — I f jti S n to � �- � t. 3 K dA b1 Av' �' 1. m CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: ORDINANCE SECOND READING: ZONING ORDINANCE AMENDMENT NO. 2015 -04 TO UPDATE THE WATER EFFICIENT LANDSCAPE ORDINANCE (STRATEGIC PLAN NO. 5, 1) CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO / �!� ��✓�� FILE NUMBER CITY MANAGER RECOMMENDED ACTION Place ordinance on second reading and adopt. On January 19, 2016, the following Ordinance was introduced for first reading and City Council authorized publication of title by a vote of 6 -0 (Amezcua absent): ORDINANCE NO. NS -2891 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 41 OF THE SANTA ANA MUNICIPAL CODE TO UPDATE THE WATER EFFICIENT LANDSCAPE ORDINANCE STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #1 (Establish a comprehensive community engagement initiative to expand access to information and create opportunities for stakeholders to play an active role in discussing public policy and setting priorities). FISCAL IMPACT There is no fiscal impact associated with this action. Maria D. Huizar, Clerk of the Council ATTACHMENT: Ordinance No. NS -2891 11B-1 11 B -2 LS 1.25.16 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 TO UPDATE THE WATER EFFICIENT LANDSCAPE ORDINANCE 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. In 1992, the State of California enacted the Water Conservation in Landscaping Act requiring the adoption of a water efficient landscape ordinance by cities and counties throughout the state. AB 1881, signed in 2006, required updates to local ordinances by January 1, 2010. In accordance with state law, the City of Santa Ana updated its ordinance, which was codified in Santa Ana Municipal Code in Chapter 41 Sections 1500 through 1504. B. With the drought conditions at emergency levels, in April 2015 Governor Brown signed an Executive Order (ED B- 29 -15) directing local agencies to update their ordinance to further water conservation and continue with efforts to substantially reduce water usage for residential, commercial and industrial landscape areas. C. Two key components of the Executive Order require: 1) The Department of Water Resources (DWR) to update the original Model Water Efficient Landscape Ordinance (MWELO) of 2009; and 2) cities and counties to update their local Landscape Ordinances, so they are "at least as effective as" DWR's updated Model Ordinance. D. In response to this mandate, a stakeholder group was formed under the leadership of the Municipal Water District (MWDOC) of Orange County earlier this year. The Orange County Model Ordinance and Guidelines were complete in October 2015 and have been reviewed by City staff as well as the City Attorney. The guiding principles of the County Model are local control, consistency among Orange County cities, and promoting the values and benefits of landscapes while recognizing the need for efficient use of water. The proposed zoning code amendment Incorporates the criteria and guidelines of the "regional" Orange County Model Ordinance and Guidelines, and upholds the "at least as effective" threshold in relation to the State MWELO. E. The ordinance applies to landscape projects that require a permit, plan check or development review. New residential, commercial, industrial and public 11 B -3 development projects that include landscape areas of 500 square feet or more would be subject to the ordinance, The previous landscape size threshold for new development projects was 2,500 square feet. The size threshold for existing landscapes that are being rehabilitated remains at 2,500 square feet. This Ordinance Amendment also addresses the allowance of synthetic turf requirements to be in compliance with recent legislation. As directed by State law, the use of synthetic turf as an option for required landscape area may not be unreasonably limited or restricted by local ordinance. The City's Synthetic Turf Design Standard will be updated to comply with State law and assure quality and sustainability of the synthetic products. G. The proposed modifications to the City Municipal Code and adoption of the updated Water Efficient Landscape Ordinance will bring the City's laws into compliance with the State water conservation mandate and other Orange County communities. Further, these requirements and guidelines will enhance the water conservation efforts currently being implemented throughout the City. SECTION 2. Article XVI of Chapter 41 of the Santa Ana Municipal Code is hereby amended such that it reads as follows: Sec. 41 -1500. Purpose. (a) The State Legislature has found that: (1) The waters of the State are of limited supply and are subject to ever increasing demands. (2) The continuation of California's economic prosperity is dependent on the availability of adequate supplies of water for future uses. (3) It is the policy of the State to promote the conservation and efficient use of water and to prevent the waste of this valuable resource. (4) Landscapes are essential to the quality of life in California by providing areas for active and passive recreation and as an enhancement to the environment by cleaning air and water, preventing erosion, offering fire protection, and replacing ecosystems lost to development. (5) Landscape design, installation, maintenance, and management can and should be water efficient. (6) Article X, Section 2 of the California Constitution specifies that the right to use water is limited to the amount reasonably required for Ordinance No, NS•XXX Page 2 of 9 11 B -4 the beneficial use to be served, and the right does not and shall not extend to waste or unreasonable method of use of water. Sec. 41 -1501. Applicability. (a) Beginning March 2, 2016, and consistent with Executive Order No. (B- 29 -15) this Article shall apply to the following landscape projects: (1) New landscape projects with an aggregate landscape area equal to or greater than 500 requiring a building or landscape permit, plan check or development review. (2) Rehabilitated landscape projects with an aggregate landscape area equal to or greater than 2,500 square feet, requiring a building or landscape permit, plan check, or development review. (3) New or rehabilitated landscape projects with an aggregate landscape of 2,500 square feet or less may comply with the performance requirements of this ordinance or conform to the prescriptive measures contained in the Guidelines for Implementation of the City of Santa Ana Water Efficient Landscape ( "Guidelines ") Appendix A as amended from time to time. (4) New or rehabilitated projects using recycled water or rain water captured on site, any lot or parcels within the project that has less than 2,500 square feet of landscape area and meets the lot or parcel's landscape water requirement (Estimated Total Water Use) entirely with the recycled water or through stored rainwater capture on site is subject only to Appendix A of the Guidelines. (b) This Article does not apply to: (1) Registered local, state, or federal historical sites or other sites exempted by applicable federal or state law. (2) Ecological restoration projects that do not require a permanent irrigation system. (3) Mined -land reclamation projects that do not require a permanent irrigation system. (4) Plant collections, as part of botanical gardens and arboretums open to the public. Ordinance No. Ns -XXX Page 3 of 9 11B-5 Sec. 41 -1502. Implementation Procedures. (a) Prior to installation, a Landscape Documentation Package shall be submitted to the City for review and approval of all landscape projects subject to the provisions of this Article. Any Landscape Documentation Package submitted to the City shall comply with the provisions of the Guidelines. (b) The Landscape Documentation Package shall include a certification by a professional appropriately licensed in the State of California stating that the landscape design and water use calculations have been prepared by or under the supervision of the licensed professional and are certified to be in compliance with the provisions of this Article and the Guidelines. (1) Landscape and irrigation plans shall be submitted to the City for review and approval with appropriate water use calculations. (2) Water use calculations shall be consistent with calculations contained in the Guidelines and shall be provided to the City under procedures determined by the City. (3) Verification of compliance of the landscape installation with the approved plans shall be obtained through a Landscape Installation Certification of Completion in conjunction with a Certificate Occupancy, Permit Final or Notice of Completion process, as provided in the Guidelines. Sec 41 -1503. Landscape Water Use Standards. (a) For applicable landscape installation or rehabilitation projects subject to Section 41- 1501(a) of this Code, the Estimated Applied Water Use allowed for the landscaped area shall not exceed the Maximum Applied Water Allowance (MA WA)calculated using an ET adjustment factor of 0.7, except for special landscaped areas where the MAWA is calculated using an ET Adjustment Factor of 1.0; or the design of the landscaped area shall otherwise be shown to be equivalently water - efficient in a manner acceptable to the City; as provided in the Guidelines. (b) Irrigation of all landscaped areas shall be conducted in a manner conforming to the rules and requirements, and shall be subject to penalties and incentives for water conservation and water waste prevention as determined and implemented by the City. Ordinance No, NS•XXX Page 4 of 9 11 B -6 Sec. 41 -1504. Definitions. The following definitions are applicable to this Article: "Aggregate Landscape Areas" pertains to production home neighborhoods, common interest developments, or other situations where multiple parcels are undergoing development as one project, but will eventually be individually owned or maintained. "City" means the City of Santa Ana, a charter city and municipal corporation, or its authorized designee. "Ecological restoration project" means a project where the site is intentionally altered to establish a defined, indigenous, historic ecosystem. "Estimated Applied Water Use" or "EAWU" means the annual total amount of water estimated to keep plants in a healthy state. It is based on the reference evapotranspiration rate, the size of the landscape area, plant water use factors, and the irrigation efficiency within each hydrozone. "Evapotranspiration adjustment factor" or `ETAF means a factor of 0.7, that when applied to reference evapotranspiration, adjusts for plant factors and irrigation efficiency, two major influences upon the amount of water that needs to be applied to the landscape. A combined plant mix with a site -wide average of 0.5 is the basis of the plant factor portion of this calculation. For purposes of the ETAF, the average irrigation efficiency is 0.71, therefore, the ET Adjustment Factor is (0.7)= (0.5!0.71). ETAF far a Special Landscape Area shall not exceed 1.0. ETAF for existing non - rehabilitated landscapes is 0.8. "Guidelines" refers to the Guidelines for Implementation of this Article, as adopted by the City, which describes procedures, calculations, and requirements for landscape projects subject to this Article. The Guidelines are consistent with the regional Orange County Model Ordinance and Guidelines. "Landscaped area" means all the planting areas, turf areas, and water features in a landscape design plan subject to the Maximum Applied Water Allowance and Estimated Applied Water Use calculations. The landscaped area does not include footprints of buildings or structures, sidewalks, driveways, parking lots, docks, patios, gravel or stone walks, other pervious or non - pervious hardscapes, and other non - irrigated areas designated for non - development (e.g., open spaces and existing native vegetation). "Landscape Documentation Package" means the_package of documents that a project applicant is required to submit pursuant to Section 2.1 of the Guidelines. "Landscape Installation Certificate of Completion" means the certificate included as Exhibit E of the Guide lines that must be submitted to the City pursuant to Section 2.7 Ordinance No. NS -XXX Page 5 of 9 11 B -7 (C) thereof "Landscape project' means total area of landscape in a project, as provided in the definition of "landscaped area," meeting the requirements under Section 41 -1501 of this Code. "Maximum Applied Water Allowance" or'MAWA" means the upper limit of annual applied water for the established landscaped area as specified in Section 2.2 of the Guidelines. It is based upon the area's reference evapotranspiration, the ETAF, and the size of the landscaped area. The Estimated Applied Water Use shall not exceed the Maximum Applied Water Allowance. "Mined -land reclamation projects" means any surface mining operation with a reclamation plan approved in accordance with the Surface Mining and Reclamation Act of 1975. "New construction" means, for the purposes of this Article, a new building with a landscape or other new landscape such as a park, playground, or greenbelt without an associated building. "Permit' means an authorizing document issued by local agencies for new construction or rehabilitated landscape. "Rehabilitated landscape" means any re- landscaping project that requires a permit, plan check, or development review and meets the applicability criteria of the Guidelines where the modified landscape area is greater than 2,500 square feet. "Synthetic Turf" means an acceptable no maw ground cover made of synthetic, non - living material which meets the criteria standards set forth in the City's Design and Development Standards. "Turf' means a ground cover surface of mowed grass or synthetic turf which meets or exceeds the standards set forth in the Guidelines. Annual bluegrass, Kentucky bluegrass, Perennial ryegrass, Red fescue, and Tall fescue are cool- season grasses. Bermuda grass, Kikuyu grass, Seashore Paspalum, St. Augustine grass, Zoysia grass, Buffalo grass, Mexican Feather grass, Muhly grass, and Sedge grass are warm - season grasses. "Water Efficient Landscape Ordinance" means Ordinance No. 2016 -XXX, adopted by the City Council on January 19, 2016 (first reading), and codified in the Municipal Code in Chapter 41 Sections 1500 -1504, Section 3. Environmental Findings. A. In accordance with the California Environmental Quality Act (CEQA), the proposed project is exempt from further review pursuant to Section 15307, Ordinance No, NS -XXX Page 6 of 9 11 B -8 which is a categorical exemption applying is projects that implements State law to protect water resources. Categorical Exemption Environmental Review No. 2015 -114 will be filed for this project. B, The following findings have been made as referenced in CEQA, Section 15300.2: Significant effect. The project shall not be used for an activity where there is reasonable possibility that the activity will have a significant effect on the environmental due to unusual circumstances. The proposed Water Efficiency and Landscape Ordinance and Guidelines will help to conserve natural resources, reduce water use, and promote a sustainable environment. Thus, the policy amendments are not anticipated to have any unusual or significant effect on the environment. 2. Scenic Highways. The project shall not result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcropping, or similar resources, within a highway officially designated as a state scenic highway. The proposed Ordinance and Guidelines will influence the landscape and irrigation practices throughout the city, including the locally designated scenic corridors. However, the City of Santa Ana does not include an official state scenic highway listings. Therefore, there will be no impact or damage to a state scenic resource related to the proposed water conservation and efficiency ordinance and guidelines reduction. Hazardous Waste Site. The project shall not be located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code. The proposed Santa Ana Water Efficiency Landscape Ordinance and Guidelines are citywide in nature, directing water conservation practices for future new and rehabilitated landscape development projects. Thus, consultation of The Official Hazardous Waste and Substance Site "Cortese" list for specific sites was not applicable for this proposed ordinance. 4. Historic Resources. The project may not cause substantial adverse change in the significance of a historical resource. As stated in Section 1.2 of the proposed Santa Ana Water Efficiency Landscape Guidelines, the Guidelines do not Ordinance No. NS -XXX Page i of 9 11 B -9 apply to properties registered on the local, state, or federally historical sites. Thus, the proposed adoption of the Water Efficiency Landscape Ordinance and Guidelines will not cause any adverse impact to a historic resource. SECTION 4. If any section, subsection, phrase, or clause of this ordinance is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, phrase or clause thereof irrespective of the fact that any one or more sections, subsections, phrases, or clauses be declared invalid or unconstitutional. ADOPTED this day of February, 2016. APPROVED AS TO FORM: Sonia Carvalho, City Attorney By:AC ar�_ Lisa Storck Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: Councilmembers Councilmembers Councilmembers Councilmembers Miguel A. Pulido Mayor 11B-10 Ordinance No. NS ->= Page 8 of 9 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 _ , 2016, and that said ordinance was published in accordance with the Charter of the City of Santa Ana. 170 m Clerk of the Council City of Santa Ana 11B -11 Ordinance No. NS -XXX Page 9 of 9 11B-12 CITY OF SANTA ANA AGENDA Parks, Recreation, Education and Youth (PREY) Council Committee Monday, January 25, 2016 — 5:30 p.m. CALL TO ORDER Room 1600, Santa Ana City Hall Ross Annex Committee Members: Council Member Tem Sal Tinajero, Council Member Angelica Amezcua, and Council Member Roman Reyna Recording Secretary: Ron Ono, Admin Services Manager PUBLIC COMMENTS - Members of the public are allowed three minutes to speak on agenda items or matters within the jurisdiction of the Committee. AGENDA ITEMS 1. Approval of Minutes of the October 26, 2015 Meeting 2, Facility Reservation Update (Enrique Marban) {Strategic Plan No. 2, 2B} 3, Chepa's Park Update (Ron Ono) {Strategic Plan No, 6, 1 G} 4. City Produced Event Update (Jeannie Jurado) {Strategic Plan No. 5, 1C} 5. Overview of Park Improvement Investment (Frank Arroyo) {Strategic Plan No. 6, 1 E, 1 G} 6. Partnership with SAUSD Update (Ron Ono) {Strategic Plan No. 2, 1 B} 7. Staff Update & Comments STAFF MEMBER COMMENTS COMMITTEE MEMBER COMMENTS FUTURE AGENDA ITEMS ADJOURNMENT Next PREY Council Committee Scheduled for Monday, April 25, 2016 at 5:30 PM J� If you need special assistance to participate in this meeting, please contact Michael Ortiz, City ADA Program Coordinator, at (714) 647 -5340. Please call prior to the meeting date, to allow the City enough time to make reasonable arrangements for accessibility to this meeting. (Americans with Disabilities Act, Title II, 28 CFR 35.102] Santa Ana City Council Miguel A. Politic, I Sal Tina)ero. Vincent f, Sarmiento, i Michele Martinez, Angelica Amezcua, P. David Bonavidas, Roman Rayne, Mayor I Ward 6 Mayor Pro Tem, + Ward 2 i Ward 3 Wood 4 Ward 5 MF aatN :an si yu�sema,ana ora Ward i I uMa,tu,ez¢gaantaan_g { ,um: X- gnma e,_g na a= V,a�s =�m.n , mp City Hall, 20 Civic Center Plaza + P.O. Box 1988 • Santa Ana, California 92702 Mayor & Council Tolophono: 714 -647 -6900 + Agenda Item inquiries: 714.647.6520 • Website: www.sant_a-ana'org 13A -1 13A -2 MINUTES OF A SPECIAL MEETING OF THE CITY COUNCIL COMMITTEE ON PARKS, RECREATION, EDUCATION AND YOUTH October 26, 2015 CALL TO ORDER Meeting convened at 5:39 p.m. at Santa Ana City Hall Ross Annex Room 1600; 20 Civic Center Plaza, Santa Ana, California 92702. ATTENDANCE Council members Present Sal Tinajero (Chair) Roman Reyna Angelica Amezcua (arrived at 5:43 pm) Staff Present: Gerardo Mouet, Executive Director PRCSA Francisco Gutierrez, Executive Director Finance Robert Cortez, Special Assistant to the City Manager Jorge Garcia, Sr. Management Assistant CMO John Funk, Deputy City Attorney Ron Ono, Administrative Services Manager Jeannie Jurado, Community Services Manager Erendira Moreno, Community Services Supervisor Enrique Marban, Community Services Supervisor Hiram Uribe, Graphic Designer • PUBLIC COMMENTS: • Samuel Romero indicated he was here in support of removing the handball court at Chepa's Park. • Isaac Manzo indicated he lived in the Logan Neighborhood for 26 years and the handball courts has help provide recreational activity for his children and are not a negative element in the park. It's a good thing for the children, a tradition and has played there since 1972. • Leonardo Penilla indicated he understands about the problem it can cause, but it gets the kids involved in the sport and there is no other park close by with courts. • Cecilia Rodriguez indicated she wants the courts removed due to the crime and noise it creates. Her nephew was beaten up because of gang activity. All the younger children are in the community center, not on the courts. She had people sign a petition to remove the courts. PREY Meeting Page 1 October 26, 2015 13A -3 • Christy Andrade indicated the courts are a nuisance. The park needs a larger playground with equipment for younger children. • Joe Andrade indicated he is the President of the Logan Neighborhood Association. He indicated people are urinating in back of the courts and he has a petition for the courts to be removed. The courts have been removed in other locations and everyone is now is playing at Logan Park. • Peter Katz, V.P Comlink, indicated he was happy staff was able to open the Library Parking Structure for the library use during the weekend. The library needs additional cameras inside the library and around the restroom. There is no emergency system in the library. The library has a problem with lice and needs regular fumigation. • Barbara Lamere is wondering why the city has 5 swimming pools and it is only open 2 day per week. Also the Newhope Library is open tomorrow from 6pm to 8pm, but the children have to leave the library by 7pm. She indicate SA Pony Baseball is great for the kids and the people that organize the program are wonderful. • CHEPA'S PARK UPDATE ON SECURITY LIGHTS, CAMERAS AND HANDBALL COURT o Ron Ono provided an update on the park security lighting, security camera and handball court issues addressed at the last PREY meeting. • Staff reported after measuring the lighting level in the park and it meets the standard lighting level in most of our parks. To address energy efficiency PRCSA is systematically changing the old lighting to new LED lamps. This also helps increase the lighting level. The cost to change the lamps at Chepa's Park is estimated at $5,000. • Staff indicated we are currently working with SAPID to identify possible security camera locations in Chepa's Park. SAPID will be preparing an RFP and cost estimate to retain a design /build company to install the cameras that will tie into SAPID computer surveillance system. • Staff indicated the area behind the handball court is not visible and a problem area for loitering. This area is secured with a chain link fence and gate. Recreation staff indicated storage space is needed for the new After School program. Staff will be looking into weatherproofing and securing the space for storage. o Erendira Moreno provided a report on that student from Sierra and Willard Intermediate School uses the handball courts along with neighborhood residents. SAPID and Recreation staff indicated only a few incidents have been reported and in most cases the courts are well used. • Councilmember Amezcua asked about the park and community center hours and staff reported between 2:30pm to 7pm. Park closes at dusk. • Councilmember Reyna reported the tree in back of the Community Center is rubbing against the building and needs to PREY Meeting Page 2 October 26, 20t5 13A -4 be removed. Staff reported we are currently addressing the tree removal. • Councilmember Reyna addressed concern on the area behind the courts. It is difficult to see and people are cutting the chain link fence. He indicated the City Manager identified and alternative of moving the property line. • Councilmember Amezcua asked about the amount of handball courts in the park. Staff reported there are two handball courts. • Councilmember Tinajero indicated we need to make the park safer with security lighting, surveillance cameras and hiring additional officers. Will continue to discuss item with staff. • APPROVAL OF MINUTES o Minutes of August 17, 2015 accepted as presented. • CITY BALL DIAMOND FIELD RESERVATION STATUS UPDATE • Chairman Tinajero opened the item for public comments: • George Robles, SA Pony thanked staff for assisting the league since 2012. Requested staff for continued help to identify fields for SA Pony league use. Wants to work with staff to keep the park safe. • Hector Garnica, SA Pony indicated he started playing ball 23 years ago and indicated additional fields are needed for practice. • Cory Nelson, SA Pony indicated having 3 teams on the field playing is very difficult. SA Pony needs a larger field. • Yolanda Linan, District 30 Little League Baseball indicated the league has increase 20% and all players are residents of Santa Ana. The adults that manage the league are all volunteers. • Michele Bretza, SA Pony League indicates the league has increased to 600 players and 80% are from Santa Ana. Where are the players going to play with limited fields? • Gerardo Mouet introduced Enrique Marban to explain the reservation system. • Mr. Marban indicated traditionally the city had 9 little leagues and now there are only 3 active little leagues. Over the years the number of little league players have decreased. Santa Ana Pony is a new youth baseball organization that is quickly growing in numbers. SA Pony expects to grow more and needs more fields. There are 39 ballfields of which 26 are lighted fields. Staff will review the field permit system and identify options for a fair and equitable permit system. Staff will meet with individual youth baseball organizations, adult baseball /softball organizations to assess their needs and to discuss options and recommendations. • Councilmember Tinajero indicated SA Pony primary field is at Riverview Park, because all the other fields are already allocated. Staff indicated the fields are provided to PREY Meeting Page 3 October 26, 2015 13A -5 organizations the entire year and fields are not dedicated to a particular league. Councilmember Reyna indicated Heritage Ballfield is not fully utilized. Staff indicated soccer and baseball uses Heritage field. Councilmember Amezcua indicated it seems SA Pony has a larger amount of participants and would need additional fields. Councilmember Tinajero indicated we should have diversity in play from traditional Little League to Pony advance play. Little League players are now grown and can advance to Pony League. They both provide a strong service to the community. Would like staff to have a meeting with Pony as soon as possible. • Delhi Baseball field needs to be attended too and used. • Adams needs to be used as a regulation field. • Would like to meet with Gerardo and Enrique on communications with SA Pony. • Need a game plan on consistent communication with an end date. CITY PRODUCED EVENT UPDATE o Gerardo Mouet introduced Jeannie Jurado to present on update on the various city events. • Jeannie presented a list of the various city events and indicated there are three events remaining to the end of the year, 1) SOMOS Event on November 8th, 2) Holiday Tree Lighting Event on November 18th and Plaza Navidena Event on December 12tH • Jeannie presented a summary of the events and directions. She indicated: • A new Events Supervisor is expected to begin in November. • City Produced Events Advisory will be created to meet quarterly. • An RFP will be released to bring back the large carnival rides for Cinco de Mayo. • Rules for booth, performance and parade participants will be developed. • Parade Theme, Grand Marshall and protocol to be in concert with direction from the City Manager and PREY Council Committee. • Rules on permitting elected officials to perform will be developed. • Rules on sponsorship partnership will be developed. • Develop ordinance change to help with unique purchasing and contract administration. • Non - Profit Beer Garden operation will be on an event -by -event basis. PREY Meeting Page 4 October 26, 2015 13A -6 ■ PREY and Council will be updated on Major Talent for the events. Councilmember Reyna indicated can other non - profit compete for the beer concession. He would like to keep it within Santa Ana Non - Profit Organizations. Councilmember Reyna indicated we should highlight the Tamale Contest. Also the plaque was small. The award should be more significant. • JOINT USE WITH SAUSD UPDATE Gerardo Mouet indicated a draft of the Nov 2, 2015 agenda for the Joint Policy Committee was sent to the SAUSD. Gerardo Mouet reported on the following Joint Use Opportunities: • City allocated $75,000 to establish a joint use trust fund. The SAUSD needs to allocate their portion and the City /SAUSD needs to create an accounting mechanism and project eligibility criteria to use these resources. • Two options locations are being considered for the synthetic turf project (Godinez High School or Segerstrom High School). SAUSD would like to move on Segerstrom High School first. • Exploring adding sports lighting to one or two large high school ball diamonds. Exact high school needs to be determined. • Explore doing a Roosevelt/Walker type project at Martin Elementary School and doing a joint purchase of church property. • Continue to develop a partnership with SAUSD students with City Library Cards. • Continue to explore opportunities for common constituency in both recreation and education arenas. Councilmember Reyna expressed possibility of an employee softball league among organizations. STAFF UPDATE AND COMMENTS c None • COMMITTEE MEMBER COMMENTS o Councilmember Reyna indicated to the public of the opportunity to receive funding ($10,000) for worthwhile programs from individual councilmembers. o Councilmember Amezcua asked staff to look into Mr. Katz comment concerning fumigation of the library if it is a problem. o Councilmember Tinajero thanked staff and everyone for their hard work and the need to work together. He indicated there were a lot of items on the agenda and we need to spend more time on critical items. Would like an e -mail on any community issues by next PREY meeting. PREY Meeting Page 5 October 26, 2015 13A -7 ® FUTURE AGENDA ITEMS o None. • ADJOURNED: 7:03 p.m. Gerardo Mouet Executive Director, PRCSA PREY Meeting Page 6 October 26, 2015 13A -8 �y. sskp s: r� CITY OF SANTA 1 n: r COUNCIL COMMITTEE MEETING AGENDA PUBLIC SAFETY AND NEIGHBORHOOD IMPROVEMENT January 26, 2016 5:30 P.M. CALL TO ORDER City Hall Ross Annex, Conference Room 1600 20 Civic Center Plaza, Santa Ana, California Committee Members: Councilmembers Benavides, Tinajero Police Chief, OCFA Division Chief, Senior Assistant City Attorney Recording Secretary: Eileen Greene PUBLIC COMMENTS - Members of the public are allowed three minutes to speak on agenda items or matters within the jurisdiction of the Committee. AGENDA ITEMS Approval of Minutes of the 11 -24 -15 Meeting 2. Body Cameras (Update) — Chief Carlos Rojas {Strategic Plan, Goal No. 1, If and 3b} Measure BB (Update) — Chief Carlos Rojas {Strategic Plan, Goal No. 1, 1 c} E- Cigarettes (Definition and Current Legislation) — Deputy City Attorney Kyle Nellesen (Strategic Plan, Goal No. 1, 1d} Pulse Point (Software Downloaded to a Smart Phone if CPR is Needed to Increase Sudden Cardiac Arrest Survival Rates) — Chief Dave Anderson {Strategic Plan Goal No. 1, 2d and 6a} If you need special assistance to participate in this meeting, please contact Michael Ortiz, City ADA Program Coordinator, at (714) 647 -5624. Please call prior to the meeting date, to allow the City enough time to make reasonable arrangements for accessibility to this meeting. [Americans with Disabilities Act, Title II, 28 CFR 35.1021 Miguel A. Pulldo, Vince Sarmiento, Michele Martinez, Angelica Amezcua, P. David Benavides, Roman Rayne, Sal Tlnajero, Mayor Mayor Pro Tom, Ward 2 Ward 3 Ward 4 Ward 5 Ward 6 Wuld.Al We ane gtu Ward Snnaleroo(ZSan—re rr VSartnient.0-S ta- ana.mn City Hall, 20 Civic Center Plaza • P.O. Box 1988 • Santa Ana, California 92702 Mayor & Council Telephone: 714. 647.6900 • Agenda Item Inquiries: 714- 647.6520 . Website: www.santa- ana.orq 13A -9 21 COMMITTEE MEMBER COMMENTS FUTURE AGENDA ITEMS Animal Services 21St Century Policing Fireworks Community Oriented Policing Body Cameras ADJOURNMENT — The next Public Safety and Neighborhood Improvement meeting is scheduled for Tuesday, March 22, 2016, at 5:30 PM at the City Hall Ross Annex, Room 1600, 20 Civic Center Plaza, Santa Ana, CA. The complete Strategic Plan document is available at http: / /www.santa- ana.ora /strategic - planning/. If you need special assistance to participate in this meeting, please contact Michael Ortiz, City ADA Program Coordinator, at (714) 647 -5624. Please call prior to the meeting date, to allow the City enough time to make reasonable arrangements for accessibility to this meeting. [Americans with Disabilities Act, Title II, 28 CFR 35.102] Miguel A. Pulido, Vince Sarmiento, Michele Martinez, Angelica Amezcua, P. David Benavides, Roman Rayne, Sal Tinajero, Mayor Mayor Pro Tem, Ward Ward Ward Ward Ward MPUdoraasanaana orn Ward STnalem@sana aneoo ysarm'en o(asanra ana.oro City Hall, 20 Civic Center Plaza • P.O. Box 1988 • Santa Ana, California 92702 Mayor & Council Telephone: 714. 647.6900 a Agenda Item Inquiries: 714.647 -6520 • Website: www.santa- ana.org 13A -10 CITY OF SANTA ANA CITY COUNCIL COMMITTEE ON PUBLIC SAFETY AND NEIGHBORHOOD IMPROVEMENT MINUTES November 24, 2015 CALL TO ORDER: Ross Annex, Room 1600 City Hall, 20 Civic Center Drive Santa Ana, California 5:30 PM ATTENDANCE: Council Committee members: David Benavides Sal Tinajero ABSENT: Angelica Amezcua STAFF PRESENT: David Cavazos, CMO Carlos Rojas, PD Dave Anderson, OCFA Laura Rossini, CAO Jason Viramontes, PD Alma Flores, CMO Judson Brown, CDA Jorge Garcia, CMO Eileen F. Greene, Recording Secretary GUEST SPEAKER: Brad Fieldhouse, City Net PUBLIC SPEAKERS: Ed Murashie Cherie Kerr Carrie Mendes Smitty PUBLIC COMMENTS Due to a technical issue with programming the recording device, Public Comments were not recorded; however, the following individuals did make comment on the following items /topics: 13A -11 Ed Murashie — Jack Fisher Park Cherie Kerr — Fireworks Carrie Mendes — expressed concern for her and her daughter's safety walking through the parks in Santa Ana, or using the restrooms, also the riverbed area. Smitty, part of Civic Center Roundtable, believes that City Net is a start to making progress for the homeless population in Santa Ana. AGENDAITEMS 1. Approval of Minutes of 9 -22 -15 Meeting Motion: Approve the Minutes of 9 -22 -15 meeting. MOTION: Tinajero SECOND: Benavides VOTE: AYES: Benavides, Tinajero NOES: None (0) ABSENT: Amezcua Motion carries. Chairman Benavides moves Item No. 6 out of order to the beginning of the meeting. 6. Proposal by City Net to Establish Santa Ana Homelessness Collaborative — Brad Fieldhouse, City Net and Santa Ana Housing Programs Manager Judson Brown {Strategic Plan Goal No. 5, 3d} Judson Brown, Santa Ana Housing Programs Manager, introduces Brad Fieldhouse of Citi Net, a company that is seeking to establish a homeless collaborative with the City. Brad Fieldhouse provides a power point presentation summarizing Citi Net's proposal. By working together with city governments, county agencies, academics, industry experts, business leaders, non - profit organizations, faith communities and philanthropists, Citi Net has a 10 -year Plan to end homelessness in Orange County. Presently, Citi Net is under contract with the City of Anaheim to facilitate their homeless collaborative. The presentation covered local endorsements by different partners, a proposal specifically for Santa Ana including budget costs, and benefits to stakeholders. The meeting resumes with the Order of items on the Agenda. 13A -12 2. 20 Century Policing (Discussion of the President's Task Force Report on 21" Century Policing) — Chief Carlos Rojas {Strategic Plan Goal No. 1, lb and lfl Chief Rojas updates progress made on 21s` Century Policing with a power point presentation. There are 73 recommendations /action items provided by this executive summary for local government review. To date, 45 have been completed, 18 are pending, 10 incomplete. A comprehensive report will be at the conclusion; this was an update for the Public Safety Committee. Examples of completed recommendations are given during the presentation which included hiring a diversified workforce, adopting policies which require officers to easily identify themselves and the development of a community policing plan. 3. Fireworks (Strategies to Ban Fireworks, Maintain Current Municipal Code or Modify the Municipal Code to Allow a Hybrid Model) — Chief Carlos Rojas {Strategic Plan Goal No. 1, 2d} Chief Rojas addressed the three options on fireworks that this Committee had requested research on: a ban on fireworks, a hybrid model, or no change where fireworks would remain legal. Currently, the City allows fireworks and a power point presentation reflected costs incurred this year including enforcement, pre - holiday preparation, PSA's, flyers, etc. The total was close to $57,000. Chief Rojas reported that overall, there would be no significant change in costs if the City were to ban fireworks or have a partial ban due to community outreach that would need to be done, overtime for officers to enforce the ban, and the Sheriffs Department charging a fee to dispose of fireworks. In studying other cities, there was still a problem associated with illegal fireworks being used. 4. Community Oriented Policing (Update on Survey Status and Current Community Policing Efforts) — Chief Carlos Rojas {Strategic Plan Goal No. 1, 1a — lj} Chief Rojas updates progress on the Department's Community Oriented Policing philosophy and announces an academic partner, Chapman University, who are on board to develop and publish a community survey. There will be a number of informal forums held with the community, and results will be posted on the website. The Police Department will modernize the community oriented policing philosophy, study best practices nationwide and become more organized as to delivery of services. An annual calendar for COP activity will be completed which will define and identify programs available. 13A -13 5. Body Cameras (Update on Controversial Issues with the Use of Body Cameras) — Commander Jason Viramontes {Strategic Plan Goal No. 1, if and 3b} Commander Viramontes reported on policy issues related to the police body worn cameras. The Department's exploratory committee has studied and evaluated best practices from other agencies and professional organizations. Items discussed were privacy concerns, recording guidelines, officer review of the camera prior to report writing, and public disclosure requests. A comparison with outside agencies that are presently using body cameras affirmed their current policy on these items. COMMITTEE MEMBER COMMENTS Committee members were encouraged with the proposal made for a coalition to address the homeless issue in the city. They would like to continue to explore options as well as partnering with the County. They complimented the Chief on his leadership, transparency and moving forward to reach the goals and recommendations provided within the 21st Century Policing executive report. Committee members were concerned with the effect on non - profits if Santa Ana were to ban all fireworks, while still interested in a partial ban. An action was requested to provide a more in -depth study back to the Public Safety Committee. Committee members were enthusiastic about the progress being made with the Community Oriented Policing and Police Body Camera items and requested to be continually updated as these items move forward. In conclusion, Committee members thanked Staff for putting together the meeting just two days before the Thanksgiving holiday, and thanked members of the community for their dedication to the City. ACTION ITEMS Item No. 3 — Fireworks Motion: Chairman Benavides requests a more in -depth study on a partial ban on fireworks. City Manager Cavazos directs the City Attorney's Office to report on non- profits. Bring back this study to Public Safety Committee before Council. MOTION: Tinajero SECOND: Benavides VOTE: AYES: Benavides, Tinajero Motion carries. 13A -14 Item No. 6 – Homelessness Collaborative Motion: Staff will move forward with the study on homeless collaborative and come back with results to City Council in January. MOTION: Benavides VOTE: AYES: Motion carries. FUTURE AGENDA ITEMS • Landlord Penalties • 21" Century Policing • Animal Services • E- Cigarette Regulations ADJOURNMENT – 7:00 P.M. CARL=S JAS - - -- —� Chief of Police SECOND: Tinajero Benavides, Tinajero 13A -15 13A -16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: QUARTERLY REPORT OF INVESTMENTS AS OF DECEMBER 31, 2015 {STRATEGIC PLAN NO. 4, 1D} J 4 �� CITY MANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: F-ITUBT-0401wil, ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER In 1995, the State of California enacted legislation revising the reporting requirements relative to investment of funds by governmental agencies. State statutes require that a quarterly report be submitted within 30 days following the end of the quarter covered by the report; however, our office continues to provide this information to the City Council monthly. Quarter- ending reports continue to be presented at a City Council meeting. The legislation dictates that this quarterly report contain the seven major elements listed below: 1. Type of investments, 2. Date of maturity, 3. Par and dollar amounts invested in each security, 4. Weighted average maturity of the investments, 5. Market value as of the date of the report, 6. Source of the market value information, and 7. Any funds, investments or programs, including loans, under the management of contracted parties. These requirements, which became effective on January 1, 1996, mandate that a statement outlining the ability of the City to meet the budgeted expenditures for the subsequent six months be submitted to the City Council on a quarterly basis. Staff performs an end -of -month expenditure analysis to comply with the expenditure requirement and a statement confirming the ability to meet this requirement in the monthly -and quarter- ending Treasurer's Report. The information is in compliance with State law and the City's Investment Policy. 19C -1 Quarterly Report of Investments February 2, 2016 Page 2 The attached Treasurer's Report (Exhibit 1) accurately reflects all pooled investments held on behalf of the City as of December 31, 2015. The following table represents percentage policy limits set by the City's Investment Policy and State Law and respective types, amounts and percentages, as of December 31, 2015. Type of Investment in $ in % COSA Policy Limits State Law Limits Certificate of Deposit (CD) $13,117,622.95 4.34% 30% 30% Federal Farm Credit Bank (FFCB) $53,963,820.00 17.85% None None Federal Home Loan Bank (FHLB) $46,073,178.00 15.24% None None —Federal- Home-Loan- Uor-tgag,eCcrp -#HLMG 42-,7- ??? ^0 an n Federal National Mortgage Association (FNMA) $80,437,507.50 26.61% None None Local Agency Investment Fund (LAIF) $38,282,559.26 12.66% None None Sub- Total $302,317,462.71 100.00% None None Cash $21,572,724.96 Total $323,890,187.67 Restricted Cash - in $ Restricted Cash $16,080,204.43 Total $16,080,204.43 T Restricted cash is held by Trustee, Bank of New York Mellon and is segregated from cash used for daily operations. The following graph represents percentages within the respective investment types, as of December 31, 2015. ■ (FNMA), City of Santa Ana Investment Portfolio Asset Allocation December 31, 2015 7.65% ■ (FHLB),15.24% 70% • Certificate of Deposlt (CD) ■ Federal Farm Credit Bank (FFCB) • Federal Home Loan Bank (FHLB) ■ Federal Home Loan Mortgage Corp. (FHLMC) • Federal National Mortgage Association (FNMA) N Local Agency Investment Fund (LAIF) 19C -2 Quarterly Report of Investments February 2, 2016 Page 3 Effective Rate of Return Month To Date (MTD) 1.05% Year To Date (YTD) 1.05% STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #4 - City Financial Stability, Objective #1 (Maintain a stable, efficient and transparent financial environment), Strategy D (Develop a fiscal health analysis tool that informs a department of its financial position in order to assist in its decision making process). FISCAL IMPACT There is no fiscal impact associated with this action. Francisco Gutierrez Executive Director Finance and Management Services Agency rp Exhibit: 1. Treasurer's Report 19C -3 Quarterly Report of Investments February 2, 2016 Page 4 CITY OF SANTA ANA TREASURER'S REPORT as of December 31, 2015 EXHIBIT 1 19C -4 19C -5 i oE O� E f 0 0 o � O d O ] m° CD tlCD E i N C E EQ Q N C C m M fn 0 �o 0• ° -yoy- E ✓_ L U `? U 0p 00 a 0 o N m r f M N 3 N e O g c p N v b w 0 M M N LL M O w ¢ n v C o o n j C N N C m0 V uT C L 30� N u U L n0 c N � p1�Y z G.TN �U N «N m `o c U E � N � c a a 'w m QU C L O O ' w D L ry O ams o v daa n. 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LL LL iii. uU. 6 O U F3 H > m m m m m N d O a � z m v b� Q Q Q 6i m � F R V � O O O `L � � � 5 F O- �� N d F- F � F T W W W W W O J W� LL m m mry o i N (/1 m !n I7 N_ 41 fn N VI fn f/1 VI O J J J J m m m J J J J N N n 0 m m m I- cC X x x X XXX XXX X xx W W � O timmw inm m 19C -12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: FEBRUARY 2, 2016 TITLE; APPROVED PUBLIC WORKS AGENCY STATUS OF ❑ As R000mmanded As PROJECTS - MONTHLY CAPITAL ® Ordinance Amended ®p Or on 1 °f Reading IMPROVEMENT PROGRAM EXECUTIVE LJ Ordinance on 2ne Reading DEPORT FOR JANUARY 2016 M Implementing Resolution (STRATEWC PLAN NO 5, 1) 0 get Public Hearing For CONTINUED TO FILE NUMBER CITY MANAG R RECOMMENDED ACTION r t s The January 2010 Capital Improvement Program Executive Summary Schedule (Exhibit 1) provides departmental activity In alignment with the stated goals of the Strategic Plan, The report Includes tasks, next steps, outcomes, and percentage completed for each project, STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 a Community Health, Livability, Engagement & Sustainabllity, Objective #1 (establish a comprehensive community engagement initiative to expand access to information and create opportunities for stakeholders to play an active role in discussing public policy and getting priorities). FISCAL IMPACT There is no fiscal Impact associated with this item. Public Works Agency on Exhibit: I, Capital Improvement Program — Executive Summary Schedule 1901-1 19D-2 v am 3 n< nE a E n° °yz 0 6a I� a E a4 N °az a a LL O _ F a£ Z a S }f� & V a`f ;E ea z a D 0 0 0 0 o 0 0 0 0 0 m N O O m S O bl 1 O O O m pG o O G n n T O Y1 N W p O O m O O O N N O O °I NN ` NN NNNNN� N N tl tl tl tl tl V V a s >> S a z z eeeeeeeeeeeeeee arve a c a c E v NE° y n o iu, s �oevddp� "E °rte „A y d i ,o c o s „� „mmpLL3c� €�3�35�3 0 a o i ° V N O p d 5 D LL ti G xm 1 M b CO .O C� z E 0 i C d E g .N S L c u c .z n > > a L c. z° o a rc 3 a a r W g° s� m u 0 v 5 a W J W } V z W a Y V J m IL IL a z Q a z N LL O 7 T nE a O ' N °az � o Q z as Q LL = of F Z a � o0 9 O O o d m' o m o m? o °so °s °so0' odoovi u' ti N ti la/1 N N N N N q s W W tl tl tl tl tl tl tl tl tl tl tl tl g tl tl tl = z 5 E 3 E 5 5 5 5 5 'a z 'a 'a a= > >> �p > >; e .o e e .o .o a .o e e e e e e e e e e e e e e e e e e m e e e e e e ae s m J m c E s u c E _ E E Q ° E u e E E ro m E d E °o m g m E°' E 8 c o 4 E N E i? i ¢ « 3 G °` WE E` c E n- c A d o E E E E c i E E E E m s E .`..`. u i a n E E E E - N d �Fm3mto m`m`i�^+3i W Hx43�u33i u °u9�'sm °a 33'3 °niLL."n m °iu°i3 s m J A° '0 6 E� c c N oA n r i m 3 a c= c ■= 6 ii F s O E r C O R 6 i n0 O N N CtU E O C y Y> d O C p K 6 N N N 6' a? m c c E m a Y Q A LY CI .0 N w N; u m a 9 u t0 F N` L O r u y` A V E E 9 9 >. p 'O e O O C 9 9 2 of C M N a N K 6 N 0 C 6 a Q N U J a $z 5 0 0 n 9 g ga M rf a f aLL e $ o' ■ W m ma^ N ' ' e e CaC � ■ ■ W G v W J slain Y W W W J e F O m e V w w � � 'E CO W W Z Z c c a N a' a z IL a z I ID aE a w w Z Z H a a p p o o -o o -b o 0 0 0'0 0 0 0 oc -o _ _ 0 0 0 0 0 0 0 0 0 0 8 H W W ° p 0 8 0 p0 0 LL L CC o o oc�oo ooti� ocoao�' o odo aio o o 'dnvic o daio 'ri "''. L _ _ m NN �y`� p O N O r W v V o n n; a V V W : WWWWWWWWWWWWW :: W W W 2 us > ;aaaaasaaaaaa�� a a� >y££ f ff >> ; "esS e a " eeee.�.,e epee e eeee . .e..e..e.ee.ee a a an °c A OC y y r fn a = = .oi : d ro v a : ` as A 3 t Mo to E m m c V E z ',. o u n ."1 0¢ s uo N E E E ° i o °E c J 0 9 6 J 7 D W V Z W Q Y OC O 1Va J m IL IL a z a a z z N LL O V t0 N ' O N .. Q Z Q O 2 z 0 F 6LL n 0 $a aE a E y" 0 a? of a yml0000lac N N N N N N V F AA 0 . Cc 1�o 1u 10 10 1 • A "0 6' p O 3 " o � m � q n— t p, in In 3" > c v 3 6 3NN ¢o� N YY Q 1 -ee- Mw .. . . . . . . . . . . .:. . a s u a„ e e 1G 10O iG 16 N N Ip 16 16 m 1O 1G L a O S 9 N O Q d u F O V �% p 3 o S « c c E E N'Q Ef oC u 9 C L C O 12A. m p cC`1n xxn m r M N1. v w E 0 0 m e pm'I N r � a � m" 8 u REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: REQUEST FOR PROPOSALS FOR AFFORDABLE RENTAL HOUSING ACQUISITION AND REHABILITATION (STRATEGIC PLAN NO 5, 3) CITY MANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: F•9;r rr ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 °" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER The City of Santa Ana ( "City ") annually receives federal grant funds through the HOME Investment Partnership Program (HOME) for the development of affordable housing. The U.S. Department of Housing and Urban Development (HUD) has commitment deadlines for the HOME funds that requires grant fund to be committed within two years of allocation by July 31 of each year. The City is currently required to commit $1,442,869 by July 31, 2016. This RFP will cover a portion of this 2016 commitment requirement. The remainder of the HUD requirement has been met by existing funding commitments. In order for the City to fully utilize these HOME funds and meet HUD's commitment deadline, staff will be releasing a Request for Proposals (RFP) on February 3, 2016 for affordable rental housing in Santa Ana (Exhibit 1). Due to HUD's commitment deadline, proposals may only be accepted for the acquisition and rehabilitation of existing residential rental projects. In November 2015, the City pre- awarded HOME funds through a competitive selection process to the Santa Ana Arts Collective project that anticipated an award of Affordable Housing and Sustainable Communities (AHSC) funding (otherwise known as Cap and Trade), with an anticipated award date in June 2016 based on the previous year's funding award timeline. However, in December 2015 the Strategic Growth Council adopted the 2015 — 2016 AHSC Program Guidelines and extended the timeline for funding awards to August 2016, one month after the City's HOME commitment deadline from HUD. Under the new HOME final rule, HOME funds cannot be committed until all other financing is fully secured. Therefore, the City must issue an RFP to commit and utilize these funds by July 31, 2016. The maximum funding available will be as follows: - $1,199,869 in HOME Program funds that must be committed by July 31, 2016 19E -1 RFP for Affordable Housing February 2, 2016 Page 2 $161,007 in HOME Program funds for Community Housing Development Organizations (CHDO) only 50 Project -Based Vouchers from the Housing Authority of the City of Santa Ana for homeless individuals or families only Based on the new HOME rules, HOME commitments cannot occur until all other financing for the project has been fully committed. The selected developer(s) will be responsible for contributing and securing additional funds, as may be necessary, for acquiring the land, completing the improvements, lease -up and operation of the project. The RFP is scheduled for release on February 3, 2016 with proposals due Monday, March 28, 2016. Notices of funding availability will be placed on the City's website, published in a general circulation newspaper, and directly emailed to local housing developers who have previously shown an interest in affordable housing development projects. Following review of the proposals received, the recommendations will be submitted for City Council's final approval. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement and Sustainability, Objective #3 (facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods). FISCAL IMPACT There is no fiscal impact associated with this action. Kelly Reenders Executive Director Community Development Agency NV /J B Exhibit: 1. Draft Request for Proposals 19E -2 REQUEST FOR PROPOSALS It793if "10111 AFFORDABLE HOUSING DEVELOPMENT CITY OF SANTA ANA Community Development Agency 20 Civic Center Plaza Santa Ana, CA 92701 Natalie Verlinich Housing Programs Analyst (714) 667 -2267 Office NVerlinich @santa- ana.orR KEY RFP DATES: Issue Date: Deadline to Submit Questions: Response Posted on City Website: Proposal Due Date: Tentative Community Redevelopment and Housing Commission Recommendation Tentative City Council Approval Wednesday, February 3, 2016 Friday, March 4, 2016 at 5:00 p.m. Friday, March 11, 2016 at 5:00 p.m. Monday, March 28, 2016 at 12:00 p.m. Wednesday, April 27, 2016 at4:30 p.m. Tuesday, May 17, 2016 at 5:45 p.m. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development F"Ell NOTICE INVITING PROPOSALS NOTICE IS HEREBY GIVEN that proposals will be received from qualified firms for development of affordable housing projects. Responses to this Request for Proposals will be accepted until Monday, March 28, 2016 at 12:00 p.m. If further information is required regarding this Request for Proposals, please contact Ms. Natalie Verlinich, Housing Programs Analyst at (714) 667 -2267 or NVerlinich @santa- ana.org. MAILED, DELIVERED BY HAND, OR COURIERED proposals will be accepted as follows: City of Santa Ana Natalie Verlinich, Housing Programs Analyst Community Development Agency 20 Civic Center Plaza, Sixth Floor Santa Ana, CA 92701 It is the responsibility of the proposer to ensure that any proposals submitted shall have sufficient time to be received by the City of Santa Ana prior to the proposal due date and time. Questions regarding the Request for Proposals shall be made in writing via e-mail to Natalie Verlinich at NVerlinich @santa - ana.org. The time the proposal is received in the Community Development Agency, 20 Civic Center Plaza 6`h Floor Santa Ana CA 92701 will be the governing time for acceptance of proposals. Late proposals will not be considered and will be returned to the proposer unopened Telegraphic electronic and facsimile proposals will not be accepted. DO NOT E -MAIL RFP RESPONSES. DO NOT FAX RFP RESPONSES. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 2 19E -4 0 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR AFFORDABLE HOUSING DEVELOPMENT (RFP) City of Santa Ana Community Development Agency Request for Proposals for HOME funds for Affordable Housing Development Pa e 3 1 R -5 PAGE 4 4 4 5 5 5 5 6 6 6 6 6 6 9 9 9 11 21 22 23 24 25 26 34 35 36 38 I. INTRODUCTION II. SCOPE OF WORK /SERVICES III. GENERAL INFORMATION IV. COORDINATION V. DEVELOPER RESPONSIBILITIES VI. CITY BUSINESS LICENSE VII. RULES FOR PROPOSALS VIII. PRE - PROPOSAL MEETING IX. E -MAIL COMMUNICATIONS AND INTERPRETATIONS /CLARIFICATIONS X. ADDENDA XI. SUBMITTAL REQUIREMENTS INFORMATION AND DEADLINE XII. MINIMUM QUALIFICATIONS XIII. SUBMITTAL REQUIREMENTS XIV. DEVELOPER SELECTION — PROPOSAL AND EVALUATION XV. PUBLIC RECORDS XVI. FILING A PROTEST EXHIBITA SCOPE OF SERVICES Attachment 1 Cornerstone Village Project Area Attachment 2 Townsend -Raitt Project Area Attachment 3 Cedar - Evergreen Attachment 4 1900 -2000 Block of W. Myrtle Street Attachment 5 Early Outreach Community Meeting Attachment 6 Rehabilitation Standards EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR GENERAL LIABILITY POLICY EXHIBITC PROPOSER'SSTATEMENT: PROPOSAL AND CONTRACT AGREEMENT EXHIBIT PROPOSAL CONTRACT AND AGREEMENT— CERTIFICATION OF NONDISCRIMINATION EXHIBIT E NON- COLLUSION AFFIDAVIT City of Santa Ana Community Development Agency Request for Proposals for HOME funds for Affordable Housing Development Pa e 3 1 R -5 PAGE 4 4 4 5 5 5 5 6 6 6 6 6 6 9 9 9 11 21 22 23 24 25 26 34 35 36 38 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR AFFORDABLE HOUSING DEVELOPMENT (RFP) I. INTRODUCTION The City of Santa Ana is soliciting proposals fort he development of affordable housing projects from developers who are experienced, very knowledgeable of HUD programs and its requirements, financially creative and capable of developing, managing and maintaining high quality affordable housing. The City may only accept proposals for the Acquisition and Rehabilitation of Existing Residential Rental Projects. Any additional financing for a project must be secured prior to July 31 2016 in order to be eligible for an award of funds. The maximum funding available will be as follows: - $1,199,869 in HOME Program funds that must be committed by July 31, 2016 - $161,007 in HOME Programs funds for Community Housing Development Organizations (CHDO) only - 50 Project -Based Vouchers from the Housing Authority of the City of Santa Ana for homeless individuals or families The financial data provided in this RFP is not guaranteed, and the availability of such funds is subject to change at any time. The City of Santa Ana makes no guarantee of the availability of funding for any particular applicant or project. The availability of 50 project -based vouchers is contingent upon proposals awarded under RFP # 15- 129 for 100 units of Permanent Supportive Housing. The Housing Authority also understands that a project where 100% of the units designated for homeless individuals or families could be one of many ways to serve the most vulnerable members of our community. As a result, the Housing Authority is willing to consider proposals for project -based vouchers wherein at least 50% of the project -based units are for homeless individuals or families and the remaining project -based units may be for individuals or families earning less than 30% Area Median Income. The submission of a proposal in response to this RFP does not commit the City to providing any funding to a proposed project. The City reserves the right to determine at its sole discretion how to disburse available funds, if at all. II. SCOPE OF WORK /SERVICES The Scope of Work will include any and all work efforts related to the Affordable Housing Development per EXHIBIT A - SCOPE OF SERVICES. The Developer shall be an independent developer capable of providing experienced, knowledgeable and professional staff. The Developer shall be responsive and maintain excellent working relationships with city residents, businesses, government officials and City staff. The Developer shall provide adequate staffing levels at all times and adhere to established schedules. The Developer shall be knowledgeable of and comply with federal, state and local laws, including the Santa Ana Municipal Code and the federal HOME Investment Partnership Act Program as it applies to their proposal. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 4 19E -6 III. GENERAL INFORMATION A. The term of any agreement will begin after the contract is awarded by the City Council. B. When determined appropriate, the City will provide information in its possession relevant to preparation of required information in the RFP. The City will provide only the staff assistance and documentation specifically referred to herein. C. The Developer shall be responsible for retaining data, records and documentation for the preparation of the required information. These materials shall be made available to the City as requested by the City. D. This RFP does not commit the City to pay costs incurred in preparation of a response to this RFP. All costs incurred in the preparation of the proposal, the submission of additional information and /or any aspect of a proposal prior to award of a written contract will be borne by the respondent. The City reserves the right to accept or reject the combined or separate components of this proposal in part or in its entirety or to waive any informality or technical defect in a proposal. E. All data, documents and other products used, developed or produced during response preparation of the RFP will become property of the City. All responses to the RFP shall become property of the City. Proposer information identified as proprietary information shall be maintained confidential, to the extent allowed under the California Public Records Act. F. The City reserves the right to reject, replace and approve any and all subcontractors. All subcontractor(s) shall be identified in the response to the RFP and the City reserves the right to reject any subcontractor(s). Subcontractors shall be the responsibility of the Developer and the City shall assume no liability of such subcontractors. IV. COORDINATION Coordination by the awarded Developer with the City, other contractors and agencies will be required to achieve satisfactory and timely delivery of the required services. Coordination may include, but not be limited to, coordination with impacted businesses, neighborhood and civic groups, local and /or state agency boards, and attendance at Community Redevelopment and Housing Commission meetings and City Council meetings. The City will decide the manner in which the coordination efforts will be conducted. At the City's option, coordination efforts may be performed by the Developer's direct contact, by the Developer acting through the City or by the City only. When coordination efforts require agreements, such agreements shall be coordinated through the City. V. DEVELOPER RESPONSIBILITIES The selected Developer will assume responsibility for all aspects of the development, and for insuring that the project is developed and operated in accordance with applicable federal and state laws, HOME regulations and Project -Based Voucher regulations. The selected Developer will ensure that the project is developed and operated in accordance with the City of Santa Ana laws, regulations, and the planning and development process. VI. CITY BUSINESS LICENSE The selected proposer shall be required to obtain a City of Santa Ana Business license within 30 -days of selection and must provide a copy to the City project manager or designee prior to commencing any work in Santa Ana. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 1915 7 VII. RULES FOR PROPOSALS The signer of the RFP 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 proposer (Exhibit E). Vlll. PRE - PROPOSAL MEETING The City will not have a pre - proposal meeting for this RFP. IX. E -MAIL COMMUNICATIONS AND INTERPRETATIONS /CLARIFICATIONS To facilitate the RFP process, proposers are required to monitor and respond to e-mail requests within 48 hours. No oral interpretations will be made by the City to any proposer as to the meaning of requirements identified herein including the Scope of Service. Every request for such an interpretation must be made in writing via e- mail to Natalie Verlinich, Housing Programs Analyst, at nverlinichC@santa- ana.org no later than Friday, March 4, 2016 at 5:00 p.m. Significant interpretations or clarification will be made by an addendum to this RFP, which will be posted to the website. Addenda may become part of the agreement documents. X. ADDENDA If clarification or interpretation of this RFP is considered necessary by the City, a written addendum shall be issued and the information will be posted on the City's website at www.santa- ana.org /bids -rfps and the Housing Authority's website. It is the responsibility of each proposer to periodically check the City's website to ensure that they have received and reviewed any and all addenda to this RFP. XI. SUBMITTAL REQUIREMENTS INFORMATION AND DEADLINE Proposals are due to the City of Santa Ana, at the date, time and location set forth on the Notice inviting proposals. Faxed and E- mailed proposals will not be accepted. XII. MINIMUM QUALIFICATIONS Proposers shall have a minimum of five (5) years recent experience in the development and operation of affordable housing projects similar to their proposed project. XIII. SUBMITTAL REQUIREMENTS Proposers shall submit five complete hard copies of their proposal, and one additional copy on a compact disc, USB flash drive or equivalent. All five copies of the proposal must include a signed cover letter. This cover letter must include a declaration that the only person, persons, company, or parties interested in the proposal as principals are named herein; 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 has full authority to bind the proposer. It must also include an email address and contact information for the signer. All proposals submissions shall be on 8 -1/2" x 11" white paper. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 6 19E -8 Statement of Qualifications (SOQ). The SOQ must include the following components: 1. Developer Team. An organizational chart showing lines of responsibility, as well as a list of team members and their duties as part of the team. If the developer is a nonprofit corporation, or if a nonprofit is one of the team members, the SOQ must include documentation that the corporation is certified by the U.S. Internal Revenue Service as a 501(c)3 tax exempt non - profit corporation, and is in good standing with both state and federal compliance. Nonprofits who wish to be considered for funding under the Community Housing Development Organization (CHDO) component of the HOME Program must complete and include a CHDO checklist, as well as the required supporting documentation. The CHDO checklist is available on HUD's website here: http: / /www.hud.gov/ offices /cpd /affordablehousing /training/ web /chdo /characteristics /chdochec.pdf. A CHDO certification from another jurisdiction is not acceptable. They must also describe their ability to comply with the new HUD requirements for CHDOs. Developer needs to identify if any contractor(s) and /or subcontractor(s) are a subsidiary to any member of the development team. 2. Developer Experience. A narrative describing recent affordable residential development and management experience, with an emphasis on experience gained in the last five years on projects similar to the one being proposed. a. Include project name and type (special needs, senior, large family, etc.), project address, developer team members, unit count and bedroom type, affordability requirements, and funding sources in your description. b. Include a description of how neighborhood input was solicited and utilized in the development of these projects. 3. Service Provider Experience. (Only if applying for Project -Based Vouchers in partnership with a Service Provider) A narrative describing recent experience, with an emphasis on experience gained in the last five years on projects similar to the one being proposed. a. Include project name and type (homeless, special needs, senior, large family, etc.), project address, unit count and bedroom type, affordability requirements, and funding sources in your description. b. Include a description of current involvement with the Orange County Continuum of Care and the Orange County Coordinated Entry system. (If from another county, may use that jurisdiction's CoC.) 4. Financial Capacity. Description of financial strength and ability to obtain project financing before July 30, 2016, and to provide sufficient equity for the successful completion of the proposed project. a. Include a description of current relationships with major lending institutions. b. The developer which is selected for recommendation to City Council, or if a partnership, the team members who will retain an ownership interest in the project, will be required to submit complete financial statements for the last three years. Because of the possibility of public records requests, the City cannot guarantee that these statements will remain confidential. 5. References. Include a list of at least three references from public agency partners and professional lenders and investors with full names, contact information, and identification of the project(s) worked on. SOQs must be limited to a maximum of 25 pages, excluding front and back covers, section dividers, and exhibits. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 19979 All project proposals must contain the following minimum submission requirements: 1. Project Description. Detailed and concise narrative describing the proposed project, including at a minimum and as appropriate the rehabilitation concept for the site or a description (with photographs) of the building to be acquired, proposed building square footage, number of units /bedrooms, total parking spaces, proposed ingress and egress, proposed rents and tenant incomes, any special needs groups to be served, amenities to be provided to the tenants, and resident manager's unit. If there will not be a resident manager for a rental project, describe in detail how the project will be managed. For all projects, the narrative must also address site control, current zoning and any required zoning changes, anticipated development costs, City funds required and required City loan terms, developer access to additional funds required by the project, and proof that the property is under contract. This narrative should be accompanied by a site map showing the project's location. 2. Development Pro Forma. A detailed development pro forma that identifies the sources and uses of all funds necessary to complete the project, and that includes the project's anticipated cash flows over a period of years equal to 15 years and 30 years. The pro forma should identify important underlying assumptions that govern the cash flows, including but not necessarily limited to the amounts and frequency of loan repayments (all sources), annual rent increases, occupancy levels, operating costs as a percent of revenue, timing and amounts of replacement costs. The developer should indicate whether the cost estimates in the Sources and Uses budget assume the payment of Davis -Bacon wages and relocation benefits, if applicable. The pro forma must include a calculation of the return on investment to the developer. This will enable the City to comply with the new HUD requirement that it evaluate the reasonableness of the "level of profit or return on owner's or developer's investment in a project ". To date, HUD has provided no further guidance on this required evaluation. 3. Projected Rental Income. Include evidence that the rental income shown in the pro forma is reasonable and achievable. If proposing all rents to be for low- income households, please include a market study. 4. Section 3 and Section 504 Compliance. Describe the steps to be taken to comply with the federal requirement for maximum feasible participation of local low income residents and businesses in the development of federally funded projects. Describe how the project will be developed and operated so as to insure compliance with all relevant components of the Americans with Disabilities Act. S. Proposed Development Schedule. Taking as a starting point City Council approval of the proposed City loan, provide a proposed development schedule that includes the following milestones at a minimum: site acquisition, additional required loan commitments and funding from all other funding sources, zoning change approvals if necessary, preparation and approval of construction plans, start of construction, completion of construction, and lease -up. The schedule must reflect the fact that under the new HOME Program regulations the City cannot commit HOME funds to the project until it has completed its own underwriting, until the developer has obtained commitments for all additional required funds, and until the City and the developer have signed a loan agreement. 6. Current Tenants. Provide a listing of all tenants currently residing in the units, if applicable. 7. Exhibit B — Proposer'sStatement 8. Exhibit C — Certification of Nondiscrimination 9. ExhibitD — Non - Collusion Affidavit City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 8 19E -10 The rrooposal must be completely responsive to the RFP. Incomplete proposals will be deemed as nonresponsive and will be rejected. The City reserves the right to reject any or all proposals submitted and no representation is made hereby that any contract will be awarded pursuant to this RFP or otherwise. XIV. DEVELOPER SELECTION — PROPOSAL AND EVALUATION Immediately following the submission deadline, the Community Development Agency will create a review panel composed of City staff from relevant City departments. Each member of this panel will evaluate and rank each proposal using the evaluation criteria listed below: 1. Demonstrated ability of the developer team to develop. Capacity to obtain such additional funding as may be necessary, to obtain the necessary entitlements, to successfully manage and complete the construction process as quickly as possible. Capacity to commit HOME funds prior to July 31, 2016, which means having all other financing in place prior to the commitment of HOME funds. (20 percent) 2. Demonstrated ability to manage affordable rental units so as to insure both ongoing compliance with affordability requirements and long term financial solvency. (15 percent) 3. Demonstrated readiness of the proposed project to proceed. Demonstrated site control and availability of financing. Appropriate zoning. Alignment with the City's Housing Element and Strategic Plan. (30 percent) 4. Proposed levels of affordability. (15 percent) 5. Extent to which City funds will be leveraged by outside funds as shown by sources and uses budget. (10 percent) 6. Anticipated cash flows as shown by the pro forma. (5 percent) 7. CHDO status (5 percent) 8. Capacity, ability and extent of effort to provide housing for homeless individuals and families. (10 percent bonus) Once the panel has completed its review of the submitted material it will invite the top rated proposers to an interview with the panel. XV. PUBLIC RECORDS Proposals will become public record after award of agreement. Interested offerors may submit a written request, with a self- addressed stamped envelope to receive results of the evaluation. Proposer information identified as proprietary information shall be maintained confidential, to the extent allowed under the California Public Records Act. Submit your request to, City of Santa Ana Community Development Agency, Attn: Natalie Verlinich, Housing Programs Analyst, 20 Civic Center Plaza M -26, Santa Ana, CA 92701. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 1 �� =11 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR AFFORDABLE HOUSING DEVELOPMENT EXHIBIT A— SCOPE OF SERVICES I. INTRODUCTION The City of Santa Ana is soliciting proposals for the development of affordable housing projects from developers who are experienced, very knowledgeable of HUD programs and its requirements, financially creative and capable of developing, managing and maintaining high quality affordable housing. The City may only accept proposals for the Acquisition and Rehabilitation of Existing Residential Rental Projects. Any additional financing for a protect must be secured prior to July 31 2016 in order to be eligible for an award of funds. The maximum funding available will be as follows: - $1,199,869 in HOME Program funds that must be committed by July 31, 2016 - $161,007 in HOME Programs funds for Community Housing Development Organizations (CHDO) only - 50 Project -Based Vouchers from the Housing Authority of the City of Santa Ana for homeless individuals or families The financial data provided in this RFP is not guaranteed, and the availability of such funds is subject to change at any time. The City of Santa Ana makes no guarantee of the availability of funding for any particular applicant or project. The availability of 50 project -based vouchers is contingent upon proposals awarded under RFP # 15 -129 for 100 units of Permanent Supportive Housing. The Housing Authority also understands that a project where 100% of the units designated for homeless individuals or families could be one of many ways to serve the most vulnerable members of our community. As a result, the Housing Authority is willing to consider proposals for project -based vouchers wherein at least 50% of the project -based units are for homeless individuals or families and the remaining project -based units may be for individuals or families earning less than 30% Area Median Income. The submission of a proposal in response to this RFP does not commit the City to providing any funding to a proposed project. The City reserves the right to determine at its sole discretion how to disburse available funds, if at all. The selected developer will also have a demonstrated history of working cooperatively with surrounding neighborhoods in all phases of project development. Both nonprofit and for profit developers are eligible to apply, either individually or in partnership with other entities. Due to HUD's commitment deadlines for the City's funds, it is imperative that applicants be able to demonstrate site control for the existing property they propose to acquire and rehabilitate. HUD policy generally discourages the use of federal grant funds as the only financing source for housing projects. As a consequence, developers who can demonstrate the capability to make non - federal funds a significant part of the financing mix for their proposed project will score higher in the selection process than those who cannot. II. HOME INVESTMENT PARTNERSHIP PROGRAM (HOME) FUNDING The City of Santa Ana (City) has adopted a Consolidated Five Year Plan (Plan) that governs its expenditure of formula grant funds received from the U.S. Department of Housing and Urban Development (HUD). The Plan identifies the development of affordable rental housing and homeownership as a high priority. It further stipulates that HOME Investment Partnership Act funds (HOME) may appropriately be used to meet these goals. A. DEVELOPMENT SITE PREFERENCES The City is not making any parcels it owns available for development through this RFP, and it will entertain proposals for suitable properties located anywhere in the City. However, the City prefers to maximize the positive impact of its limited federal housing development funds by concentrating their expenditure in targeted City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 10 19E -12 areas of the City. The City has identified five geographical areas where it has targeted significant public resources in the past, and where it would like to see additional resources targeted in the future. The four areas are known as follows: Cornerstone Village (Attachment 1), Townsend -Raitt (Attachment 2), Cedar - Evergreen (Attachment 3), and 1900 -2000 Myrtle Street (Attachment 4). Additional target areas are identified in the City's Housing Element. Both the Plan and the City's Housing Element identify affordable rental housing suitable for larger households as a high priority for the City. One of the rating criteria is the bedroom size of the proposed units. Project design and construction will be subject to and carried out in accordance with established City standards and procedures. In accordance with the City's Early Outreach policy (Attachment 5), the selected developer may be required to solicit significant neighborhood input during the design process. B. AVAILABLE FUNDS The financial data provided in this RFP is not guaranteed, and the availability of such funds is subject to change at any time. The City of Santa Ana makes no guarantee of the availability of funding for any particular applicant or project. [Please Note: the availability of up to 50 project -based vouchers is contingent upon proposals awarded under RFP # 15 -129 for 100 units of Permanent Supportive Housing.] The submission of a proposal in response to this RFP does not commit the City to providing any funding to a proposed project. The City reserves the right to determine at its sole discretion how to disburse available funds, if at all. In order for HOME funds to be committed, all other financing must be place, including Low - Income Housing Tax Credits. The City will provide a pre- commitment letter to those projects successful in receiving allocations through this RFP. HOME Program expenditures are limited to an amount equal to the maximum subsidy limit established by HUD for units based on bedroom size times the number of such units. The maximum subsidy limits are as follows: # of Bedrooms HOME Maximum Subsidy 0 $128,000 1 $148,000 2 $180,000 3 $235,000 4+ $255,000 Only HOME assisted units count toward the calculation of the HOME Program funds that may be invested in a project. HOME assisted units are deed restricted to rents and incomes eligible under the HOME Program. C. TERM OF AFFORDABILITY AND MAXIMUM ALLOWABLE RENTS The selected developer shall enter into a Loan Agreement with the City of Santa. This Agreement and other attendant documents shall provide for repayment of the loan. They shall also impose affordability covenants of no less than fifteen (15) years for acquisition /rehabilitation projects or until the City loan is repaid whichever is longer. HOME funded units must, at a minimum be affordable to very low and low income households. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 1k 'i3 As of the date of this RFP allowable rents are as follows: # of Bedrooms Maximum 30% Rent (2015 TCAC Limits) Maximum 50% Rent (Very Low/ 2015 Low HOME Rent) Maximum 65% Rent (Low/ 2015 High HOME Rent) 0 $492 $843 $1,076 1 $527 $903 $1,154 2 $633 $1,083 $1,387 3 $730 $1,252 $1,594 4 $815 $1,397 $1,759 Allowable rents must be reduced by a utility allowance for tenant paid utilities. HUD now requires that utility allowances be calculated for each project, and recommends using the model found at the following location: http://huduser.org/portal/resources/`utilmodel.html. D. LOAN TERMS City assistance will be offered in the form of a long term loan secured by a promissory note and a deed of trust recorded against the property. If necessary, this loan may be subordinated to loans from other lenders. The loan will carry a 3 percent interest rate payable through residual receipts over a period of fifty -five (55) years. At the close of each fiscal year and as part of a required annual audit, the developer will calculate the amount of residual receipts, and make an annual payment to the City in an amount equal to 50 percent of the residual receipts. E. DISCLOSURES • HUD has recently adopted significant changes to the rules governing the HOME Program. The full implications of these changes are not yet clear. The new rule can be accessed at: htto: / /oortal.hud.izov /hudi)ortal /HUD ?src = /program offices /comm _ planning /affordablehousing /programs/ home • All documents submitted to the City in response to the requirements of this RFP are subject to public records requests. This includes Financial Statements, pro formas and other information submitted in response to the new HUD requirement that the City review and evaluate the reasonableness of the return on the developer's investment in the project. The City cannot guarantee that these records will be kept confidential. • The City will require developers to enforce the federal occupancy standard of two persons per bedroom plus one. • The City utilizes rent and income tables developed by HUD, and for 30 percent of median rents, tables developed by the California Tax Credit Allocation Committee. Allowable rents and incomes may remain unchanged or may go down from one year to the next. Attainable rents may be significantly less than allowable rents. The City anticipates that HUD may release new rent and income tables for the HOME Program at some time during the next several months. Both may be lower than the current tables. • The City utilizes an Information Bulletin released annually by HUD to determine the maximum per unit HOME subsidy limits. The last such Bulletin was released May 31, 2012 with an effective date of January 1, 2012. When released, the new bulletin may increase or decrease the HOME subsidy limits applicable to this RFP. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 12 19E -14 • Projects with more than 11 (11) HOME Assisted or 8 Project -Based Voucher units are subject to Davis -Bacon wage requirements. • HUD regulations prohibit the use of federal funds to pay relocation costs for tenants without a legal right to reside in the United States. State law requires that they be paid for those costs. Consequently the City will require that they be paid out of a nonfederal funding source. • For acquisition /rehabilitation projects the City will require that the developer hire a professional relocation firm to develop and implement a relocation plan. The selected firm must be acceptable to the City. • Unless it will be rent and income restricted, HOME funds cannot be used to pay for the development of a resident manager's unit. • Under the newly revised HOME Program final rule, the City may not enter into a written agreement that commits HOME funds until all other required funding has been secured by means of a firm commitment, a budget and production schedule has been established, and underwriting completed. In order to facilitate this process, the City will require the selected developer to provide evidence of firm commitment for any additional funds required by the project within 30 days of the selection of their proposal. If the selected developer cannot provide the financing commitments, their proposal will be denied. The City must commit these HOME funds by July 31, 2016. As a consequence it is imperative that proposed projects be ready to move forward and additional required funding be readily available. Proposed development schedules must reflect this deadline. Under the newly revised HOME Program final rule, nonprofits wishing to be certified as CHDOs must have paid staff whose experience qualifies them to undertake CHDO activities. To act as a "developer," a CHDO must be in sole charge of all aspects of the development process, including design, financing and construction. CHDO rental projects "developed" by a CHDO must be owned by the CHDO. Two other CHDO roles and their requirements ( "owner" and "sponsor ") are described in Section 92.300 of the revised rule which is available on HUD's website. Nonprofits seeking HOME funding as CHDOs must identify which of these three roles they will play, and how they meet HUD's requirements. • The newly revised HOME Program final rule includes several mandated progress - related deadlines that will be incorporated into the developer's loan agreement, and that must be incorporated into the project's proposed timeline: o Construction must be underway within a year of the commitment of HOME funds HOME assisted rental units must be occupied by income - eligible tenants within 18 months of project completion. o HOME projects must be completed within four years of the commitment of HOME funds City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 1k 15 III. PROJECT BASED VOUCHERS The Housing Authority of the City of Santa Ana (SAHA) is soliciting applications from developers who are planning to acquire and rehabilitate existing rental housing within the jurisdictional boundaries of the City of Santa Ana, and who wish to secure Project Based Vouchers (PBVs) for their project to serve homeless individuals and families. Applications may be submitted by individuals, firms, or partnerships that individually or collectively have the knowledge, resources and experience necessary to develop and operate rental housing in accordance with the requirements of a HAP Contract. Projects which have already begun construction are not eligible for consideration. Depending upon the quality of submittals, SAHA may choose to enter into a PBV Agreement with one or more of the respondents, or with none of the respondents. The proposed Agreement to Enter into a HAP Contract (AHAP) will commit SAHA to making project based vouchers available for the selected project. The total number of vouchers available for commitment is 50. Continued availability of the vouchers will depend upon the developer's continued compliance with the requirements of the contract, and the continued availability to SAHA of sufficient numbers of vouchers to meet all such contractual obligations. Background and Objectives Public Housing Authorities (PHAs) can use up to 20 percent of their housing choice vouchers for PBVs. While PBVs reduce tenant mobility, they insure the availability of rental units at participating projects through the term of the contract, and so help a PHA to meet its basic objective of assisting its clients to obtain decent, safe and affordable rental housing. As a result, the Santa Ana Housing Authority (SAHA) Administrative Plan provides for the operation of a PBV Program utilizing up to 20 percent of its budget authority for that purpose. The Administrative Plan is available on the City's website at: http:// www. ci. santa- ana .ca.us /cda /HousingAuthority.asp Owners submitting responses to this RFP should be fully conversant with Chapter 17 of the Administrative Plan which details SAHA's PBV Program. In the event of any discrepancy between the Plan and the contents of this RFP, the Plan will prevail. Solicitation and Selection of PBV Proposals The Administrative Plan requires that SAHA must decide what housing type, new construction, rehabilitation or existing housing, will be used to develop project -based housing. SAHA has determined that rehabilitated rental housing is most appropriate, and is soliciting proposals for such projects. The Plan provides for two methods by which SAHA may solicit and select owners proposing to provide affordable rental housing to receive a PBV HAP Contract: 1. SAHA request for PBV Applications. SAHA may solicit applications by using a request for proposals process to select applications on a competitive basis. SAHA may not limit applications to a single site or impose restrictions that explicitly or practically preclude owner submission of proposals for PBV housing on different sites. 2. SAHA may select applications that were previously selected based on a different competition. This may include selection of a proposal for housing assisted under a federal, state, or local government housing assistance program that was subject to a competition in accordance with the requirements of the applicable program. This Request for Proposals (RFP) is issued in accordance with the first of these two methods. Applications may be submitted for qualified projects within the City of Santa Ana. All complete proposals received by the submission deadline will be rated and ranked by a review panel composed of SAHA and City of Santa Ana staff members. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 14 19E -16 As stipulated in the Administrative Plan, the review panel will use the following criteria but will not be limited to these criteria in their evaluation: • Experience as an owner in the tenant -based voucher program and owner compliance with the owner's obligations under the tenant -based program; • Extent to which the project furthers SAHA's goal of de- concentrating poverty and expanding housing and economic opportunities; • If applicable, extent to which services for special populations are provided on site or in the immediate area for occupants of the property; and • Extent to which units are occupied by families that are eligible to participate in the PBV program. Site Selection Standards It is SAHA's goal to select sites for PBV housing that provide for deconcentrating poverty and expanding housing and economic opportunities. In complying with this goal SAHA will limit approval of sites for PBV housing in census tracts that have poverty concentrations of 20 percent or less. However, SAHA will grant exceptions to the 20 percent standard where SAHA determines that the PBV assistance will complement other local redevelopment activities designed to deconcentrate poverty and expand housing and economic opportunities in census tracts with poverty concentrations greater than 20 percent, such as sites in: • A census tract in which the proposed PBV development will be located in a HUD - designated Enterprise Zone, Economic Community, or Renewal Community; • A census tract in which the proposed PBV development will be located is undergoing significant revitalization as a result of state, local, or federal dollars invested in the area; • A census tract where new market rate units are being developed where such market rate units will positively impact the poverty rate in the area; • A census tract where there has been an overall decline in the poverty rate within the past five years; or • A census tract where there are meaningful opportunities for educational and economic advancement. Existing and Rehabilitated Housing Site and Neighborhood Standards SAHA may not enter into an agreement to enter into a HAP Contract nor enter into a HAP Contract for rehabilitated housing until it has determined that the site complies with the HUD required site and neighborhood standards. The site must: • Be adequate in size, exposure, and contour to accommodate the number and type of units proposed; • Have adequate utilities and streets available to service the site; • Promote a greater choice of housing opportunities and avoid undue concentration of assisted persons in areas containing a high proportion of low- income persons; • Be accessible to social, recreational, educational, commercial, and health facilities and services and other municipal facilities and services equivalent to those found in neighborhoods consisting largely of unassisted similar units; and • Be located so that travel time and cost via public transportation or private automobile from the neighborhood to places of employment is not excessive. Subsidy Layering Analysis Requirement Under the federal regulations, SAHA cannot enter into a PBV HAP Contract or AHAP Contract for new construction or rehabilitation projects until a subsidy layering analysis has been completed. Under current HUD procedures, this analysis will be prepared by the California Tax Credit Allocation Committee (TCAC) for projects selected to receive a tax credit reservation. For projects that SAHA has approved to receive PBVs but will not receive tax credits, SAHA will City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development r11 1b7 submit a request to HUD to perform the analysis. The purpose of this analysis is to insure that housing projects receiving assistance from HUD do not receive excessive compensation by combining various forms of HUD program assistance with assistance from other federal, state, or local agencies. Supportive Services One of the most important elements of providing housing for the homeless is ongoing supportive services that are wrapped around homeless individuals and families placed in housing. Under this RFP, the Scope of Services required for in the course of operating the Project -Based Voucher Program for homeless individuals and families will include, but not be limited to: 1. Performing intake of homeless individuals and families for participation in the Program; 2. Accepting referrals of homeless individuals and families from the Orange County Continuum of Care Coordinated Entry System or a homeless service provider approved by SAHA; 3. Placing homeless individuals and families into project -based housing units; Housing First Housing First is an approach that offers permanent, affordable housing as quickly as possible for individuals and families experiencing homelessness, and then provides the supportive services and connections to the community -based supports people need to keep their housing and avoid returning to homelessness. Housing provides a foundation from which a person or family can access the services and supports they need to achieve stability, begin the recovery process, and pursue personal goals. Housing First programs share critical elements: • There is a focus on helping individuals and families access and sustain rental housing as quickly as possible and the housing is not time - limited; • A variety of services are delivered primarily following a housing placement to promote housing stability and individual well- being; • Such services are time - limited or long -term depending upon individual need; and • Housing is not contingent on compliance with services — instead, participants must comply with a standard lease agreement and are provided with the services and supports that are necessary to help them do so successfully. A Housing First approach rests on the belief that helping people access and sustain permanent, affordable housing should be the central goal of our work with people experiencing homelessness. By providing housing assistance, case management and supportive services responsive to individual or family needs (time - limited or long -term) after an individual or family is housed, communities can significantly reduce the time people experience homelessness and prevent further episodes of homelessness. A central tenet of the Housing First approach is that social services to enhance individual and family well -being can be more effective when people are in their own home. The Housing First approach is strongly recommended for receiving and providing housing for referrals from the Orange County Continuum of Care Coordinated Entry System or a homeless service provider. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 16 19E -18 IV. DEVELOPER REQUIREMENTS AND RESPONSIBILITIES I. INSURANCE Prior to undertaking performance of work under this Agreement, Developer shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: 1. Commercial General Liability Insurance. Developer 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 Developer's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting there from, and property damage, in the total amount of $2,000,000 per occurrence, $2,000,000 in the aggregate. 2. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. 3. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Developer 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, Developer agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 4. The following requirements apply to the insurance to be provided by Developer pursuant to this section: a. Commercial general liability and business automobile insurance policies shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self- insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. A sample additional insured endorsement is attached hereto as Exhibit B. Developer shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. b. Certificates of insurance shall be furnished to the City upon execution of this Contract and shall be approved in form by the City Attorney. c. 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. 5. If Developer 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 Contract. Such termination shall not affect Developer's right to be paid for its time and materials expended prior to notification of termination. Developer waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development ea.w 17 19E -19 ii. HOLD HARMLESS/ INDEMNIFICATION To the fullest extent permitted by law, Developer shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Contract (including, without limitation, defects in workmanship and /or materials) or Developer's presence or activities conducted performing the work (including the negligent and /or willful acts, errors and /or omissions of Developer, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Developer to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of the Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Developer. iii. NOTICE Any notice, tender, demand, delivery or other communication pursuant to this Contract 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 to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax 714- 647 -6956 With courtesy copy to: Housing Division Manager City of Santa Ana Community Development Agency 20 Civic Center Plaza (M -26) Santa Ana, CA 92701 Fax 714 - 667 -2225 f►rJfi47M 101_ti1I0 1 The City reserves the right to terminate the contract, without penalty, for cause immediately or without cause. 1. In the event Developer fails or refuses to timely perform any of the provisions of this Agreement in the manner required, or if Developer violates any provision of this Agreement, Developer shall be deemed in default. City shall provide written notice of such default to Developer's Project Manager. Developer shall cure said default within a period of two (2) working days. If such cure is not completed in a timely manner, City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 18 19E -20 City may assess liquidated damages or terminate the Agreement forthwith by giving written notice to Developer's Project Manager. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement by giving written notice of termination. Developer shall be responsible for all costs incurred by City, including replacement costs of equipment and labor required to provide service during Developer's default. 2. This agreement may be terminated without cause by City upon thirty (30) days written notice delivered to the Developer either personally or by mail. Upon termination, City shall pay to Developer that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. The Developer may request termination of the contract when conditions during the contract make it impossible to perform or when prevented from proceeding with the contract by act of God, by law or official action of a public authority or in the event on nonpayment by the City. Such request will require one - hundred and eighty (180) days written notice prior to contract termination date requested. In the event of nonpayment of undisputed sums by the City, Developer shall give the City thirty (30) working days to cure the alleged breach. VI. EMPLOYMENT OPPORTUNITIES FOR SANTA ANA RESIDENTS Developer shall solicit and advertise employment opportunities to Santa Ana residents. The City shall inform the Developer of areas to publicize recruitment opportunities, such as work centers and community centers. Such effort and procedure will be provided to the City for review. vii. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS 1. Developer shall perform all requirements under this contract in strict observance of and in compliance with all applicable environmental, traffic, safety and any other laws, regulations, ordinances, codes and any other legislative or statutory requirements. 2. Developer warrants that the performance of services under this contract shall be compliant with the current requirements of the Occupational Safety and Health Act (OSHA) and as it may be amended or updated throughout the term of this contract. viii. ASSIGNMENT Inasmuch as the Agreement is intended to secure the specialized services of Developer, Developer may not assign, transfer, delegate or subcontract any interest herein without the prior written consent of City and any such assignment, transfer; delegation or subcontract without the City's prior written consent shall be considered null and void. ix. JURISDICTION —VENUE This Contract has been executed and delivered in the State of California and the validity, interpretation, performance and enforcement of any of the clauses of this Contract 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 Contract. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 19� 121 x. FINES The Developer shall be liable for all violation fines levied against the City by State or Federal Agencies and the Courts such as, but not limited to, oil or fluid leaks. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 20 19E -22 ATTACHIVIENT CORNERSTONE V[3 LAGE FROJECTAREA City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 1 k -'13 ATTACHMENTS TOWNSEND - RAITf PROJECT AM City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 22 19E -24 F- !alf _ 8 Ian f k J fezl 'Madison wl HOOD AV T re'¢a{ MADISON r r r __EDINGER AV- -- 1 t i CC fam ime iael T face < J ewa mlo{ tool fwo� rmo _ K ___ �. am�rem laia au ...lou rieiz Q _. _L._1___, 1 _ -., F �jI + r l rm 1 16 a 4� for 1 ..•— . �. .. la a tmp l wfa nczl K iwa ._. . ...,. lamG ,._.. 2 �te a f —{ .^ M/I .� Irm °a P ©MONA $T 1 O% im - �.--.4 - -� T TN ! -� nn �ua 11 1 ----------------------- __ _ tmzi 1me ufa{ nn _ IIp Y 1tt3� ( tl&1 -� r .. _ 1�' -y n]a 1ttf I . 1)fd_ J Irla I � � I1M IAW I - I f r IBRI I-' 1p 1rel ww gI iaoa mfn? W lya Ia�J;- late a�>tter F- 2 m 00OiDEHTA4 14ar 444 t i41 IWI q ] 1WP - g J e IBld Cedar Evergreen N Co-op 1-N ppair �; 1i'¢ *a• �I' School Parks w E BE i"4�l a tw aoo asa am 8 cq�greatta.uwyrorw✓Qe c ATTACHMENT 3 — CEDAR - EVERGREEN City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 16E �5 1 d tv City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 24 19E -26 ATTACHMENT 5: EARLY OUTREACH COMMUNITY MEETING Information regarding the City's Early Outreach Community Meeting requirement can be accessed here: http: / /www.santa- ana.org /pba /planning /documents /Sunshine Ordinance -Guide to Community Meetings.pdf City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 161f-�7 ATTACH ME NT 6: CITY OF SANTA ANA REHABILITATION STANDARDS PREFACE The primary purpose of these standards is to address the quality of workmanship and materials expected, and to achieve consistency throughout the program activities administered by the City of Santa Ana. These standards are not intended to reduce or exclude the requirements of any federal, state or local codes, standards, ordinances and regulations that apply to residential rehabilitation. WORKMANSHIP All work shall be performed in a professional and workmanlike manner. The quality and durability of the work shall meet or exceed the standards established by the construction industry and various trades. MATERIALS & EQUIPMENT • All materials and equipment shall comply with and be installed in accordance with the manufacturer's requirements and all applicable codes, standards, ordinances and regulations. If a discrepancy occurs between the requirements, the more stringent shall prevail. • Unless otherwise specified, all materials and equipment shall be medium grade. • Economy grade materials and equipment are unacceptable. • All materials and equipment shall be new, in excellent condition, and delivered to the job in the manufacturer's original packaging. • The description of materials and equipment found in this document establish a minimum standard. ENERGY EFFICIENCY, WATER CONSERVATION & RECYCLED MATERIALS To the extent possible and practical, standard measures related to energy conservation, energy efficiency, water conservation and the use of recycled materials have been incorporated herein. Gut rehabilitation or new construction of residential buildings up to three stories will be designed to meet the standard for Energy Star Qualified New Homes. Gut rehabilitation or new construction of mid or high rise multi - family housing must be designed to meet the American Society of heating, Refrigerating and Air - Conditioning Engineers (ASHRAE) Standard 90.1 -2004, Appendix G plus 20 percent. LEAD -BASED PAINT All housing built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. HUD's guidelines are available at http• / /www.hud.gov offices /lead /lbp /hudguidelines /index.cfm. BUILDING STANDARDS Minimum Standard • The site shall be hazard -free and sanitary. i The site and all paving shall drain away from the dwelling and accessory buildings, but not onto adjacent properties. • Paving and walkways shall be hazard -free and intact. • Landscaping and irrigation systems shall be hazard -free and in relatively good condition. All dead vegetation shall be removed. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 26 19E -28 • Fencing, walls and gates hazard -free and intact. All gates shall be in good working order. • The site shall be free from trash, debris and hazardous materials. • Accessory buildings shall be safe and sound. Paving • All new paving and walkways shall be constructed with concrete (2,000 PSI @ 28 days). • Driveways shall be reinforced with wire mesh. Sawn expansion- contraction joints shall be placed every 8 feet in both directions. • All paving and walkways shall be finished with a light broom texture. • All walkways shall be at least 3 feet wide. Sawn expansion- contraction joints shall be placed every 4 feet. Landscaping & Irrigation • To the extent possible and practical all new landscaping shall be drought resistant. • When a lawn is being replaced, the new lawn area shall be reduced to aid in the reduction of water consumption. • New irrigation controllers shall be weather or sensor based and EPA Water - Sense qualified. • All new irrigation systems shall be designed to conserve water. Fences, Walls & Gates • All new wood fences shall be made from good quality materials. They shall be properly supported with 4X4 pressure treated posts (8 feet O.C.) and 2X4 rails (top and bottom). The posts shall be embedded in a concrete footing at least 18" deep. • All new block walls shall be constructed with 6X8X16 concrete block. They shall be properly supported by a continuous footing and reinforced with steel bar. Minimum Standard • Roofs shall be safe and structurally sound. • Roof coverings shall be intact and watertight. • Roofing metal and flashing shall be intact and rust free. • Gutters and downspouts shall be intact and rust free. • Roof coverings with five or less years of useful life shall be replaced. Rehabilitation . Roofs that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • The replacement of roofing includes the replacement of all metal (roof jacks and flashing). • Gutters and downspouts shall be installed to properly discharge rain water run- off. Roof Coverings . 25 -year, 3 -tab, self - sealing composition shingle. Built -up membrane (hot mop) system on all flat roofs. • Lighter colored coverings are preferred for energy efficiency. Minimum Standard • Safe, structurally sound and watertight. Rehabilitation • Decks, balconies and railing that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 1�z 19 with the minimum standard will be achieved. Finishes • Zero or low VOC primers, paint and coatings. Minimum Standard • Safe and structurally sound. Rehabilitation • Ext. steps, stairways and railing that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Finishes • Zero or low VOC primers, paint and coatings. Minimum Standard • Safe and structurally sound. Rehabilitation • Foundations that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, raised foundations shall be completely insulated. Concrete • 2,000 PSI (minimum). Minimum Standard • Safe, structurally sound and watertight. Rehabilitation • Exterior walls that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, all exterior walls shall be insulated. Minimum Standard Y Safe, sound, weather -tight and in good working order. Rehabilitation • Exterior doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. New Doors • EPA Energy Star qualified, zero or low VOC finish. New Hardware • Reputable manufacturer, lifetime finish. Minimum Standard • Safe, sound and in good working order. Doors shall be impermeable (primed and painted). • Five or more years of practical utility. Rehabilitation • Garage doors and openers that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Minimum Standard i Windows shall be safe, sound, weather -tight and in good working order. • Windows that can be opened shall have a tight- fitting insect screen. • Five or more years of practical utility. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 28 19E -30 Rehabilitation . Windows that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. New Windows • Reputable manufacturer. • EPA Energy Star qualified. Minimum Standard s Homes built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. • All exterior paint shall be intact and free of corrosion. • Five or more years of practical utility. Rehabilitation • All surfaces to be painted shall be prepared properly. All loose material and peeling paint shall be removed. • All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All stucco surfaces to be painted shall receive a complete and even coverage of stucco paint. • All wood surfaces to be painted shall receive a complete and even coverage of flat exterior paint. • Poor workmanship will not be tolerated. New Paint • Reputable manufacturer. • Highest quality available. • Zero or low VOC paint, caulking and fillers. Minimum Standard . Safe and structurally sound. • All plaster, drywall and paneling shall be safe and intact. Rehabilitation • Walls and wall coverings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, the attic, walls and floor on raised foundations shall be insulated. FLOORS ••° COVERINGS Minimum Standard • Safe, sound and sanitary. • Five or more years of practical utility. Rehabilitation • Floor coverings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Floor Coverings . Carpet & Pad (Reputable manufacturer, recycled materials). • Resilient Flooring (Reputable manufacturer, 10 year wear warranty). • Ceramic Tile (Reputable manufacturer) Minimum Standard • Safe, sound and in Rood working order. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 1kii • Five or more years of practical utility. Rehabilitation • Interior doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Doors & • Doors (Reputable manufacturer, masonite, raised panel). Hardware Hardware (Reputable manufacturer, lifetime finish). Minimum Standard Homes built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. • All interior paint shall be intact and corrosion -free. • Five or more years of practical utility. Rehabilitation • All surfaces to be painted shall be prepared properly. All loose material and peeling paint shall be removed. • All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All surfaces to be painted shall receive a complete and even coverage of flat paint (semi -gloss in kitchens, bathrooms and laundry rooms). • Poor workmanship will not be tolerated. New Paint • Reputable manufacturer. • Highest quality available. • Zero or low VOC paint, caulking and fillers. • e Minimum Standard • Cabinets shall be safe, sound, sanitary and in good working order. • Countertops shall be safe, sound, sanitary and watertight. i Five or more years of practical utility. Rehabilitation • Cabinets and countertops that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Cabinets ! Reputable manufacturer. • Solid hardwood face - frames, door - frames and drawer fronts. • Metal and nylon drawerguides. • Low or zero VOC adhesives and finishes. Replacement Countertops • Reputable manufacturer. • 4" ceramic tile, 6" backsplash, bull -nose edge. Minimum Standard • Safe, sound, sanitary and in good working order. • Faucets shall (at a minimum) be equipped with a low -flow aerator. • Five or more years of practical utility. Rehabilitation • Kitchen fixtures, equipment and appliances that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 30 19E -32 Replacement Sinks • Reputable manufacturer. Minimum Standard • 18 -guage (minimum) stainless steel. Replacement Faucets • EPA Water -Sense qualified. • Reputable manufacturer. • Brass construction, metal housing. Replacement Disposals • Reputable manufacturer. • %: HP motor (minimum). Rehabilitation • Stainless steel swivel lugs. Replacement Dishwashers • EPA Energy Star qualified. • Reputable manufacturer. Replacement Range Hoods • EPA Energy Star qualified. • Reputable manufacturer. Replacement Ranges • Reputable manufacturer. f Pilot -free ignition. Replacement Faucets • Four sealed burners. • Self- cleaning oven with timer. Replacement Cook Tops • Reputable manufacturer. Replacement Toilets • Pilot -free ignition. • Four sealed burners. Wall Ovens • Reputable manufacturer. • Pilot -free ignition. • Self- cleaning oven with timer. BATHROOM EQUIPMENT Minimum Standard • Safe, sound, sanitary and in good working order. • Faucets shall (at a minimum) be equipped with a low -flow aerator. • Showerheads shall (at a minimum) be equipped with low -flow aerator. • Porcelain sinks shall be free from any cracks or chips. • Steel sinks shall be free from any rust or corrosion. • Five or more years of practical utility. Rehabilitation . Bathroom fixtures and equipment that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Toilets that require more than 1.6 GPF shall be replaced regardless of their condition. Replacement Sinks + Reputable manufacturer. • Cast iron, white enamel finish. Replacement Faucets • EPA Water -Sense qualified. • Reputable manufacturer. f Brass construction, metal housing. Replacement Toilets . Reputable manufacturer. • EPA Water -Sense qualified (1.28 GPF) Replacement Tubs • Reputable manufacturer. • Cast iron body, white enamel finish, slip resistant bottom. • EPA Water -Sense qualified plumbing fixtures. Replacement Combination . Reputable manufacturer. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 161t- 33 Tub - Showers • Cast iron body, white enamel finish, slip resistant bottom. • 4" ceramic tile surround. • Anodized aluminum doors with tempered glass. • EPA Water -Sense qualified plumbing fixtures. Replacement Showers ! Reputable manufacturer. • 4" ceramic tile. • Anodized aluminum doorwith tempered glass. • EPA Water -Sense qualified plumbing fixtures. Replacement i Reputable manufacturer. Medicine Cabinets • Steel body, beveled mirror door. Towel BE & Toilet Paper • Reputable manufacturer. Holders • Metal construction, polished chrome finish. RVAII 94 0 1. WIN III Minimum Standard • Safe, sound and in good working order. • Five or more years of practical utility. Rehabilitation • Water heaters that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement • Reputable manufacturer. Water Heaters (Tank) • EPA Energy Star qualified. • 40- gallon insulated tank. Replacement • Reputable manufacturer. Water Heater 6 EPA Energy Star qualified. (Tank -Less) Minimum Standard • Safe, sound and in good working order. minimum service. Rehabilitation • Electrical service panels, breakers and wiring that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Knob and tube wiring shall be replaced regardless of its condition. • Overhead wiring from a dwelling to a detached garage or accessory building shall be installed underground regardless of its condition. ble manufacturer. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 32 19E -34 Service • 100 - ampere (minimum). Replacement Wiring • Romex (NM cable). OUTLETS ELECTRICAL SWITCHES/ Minimum Standard • Safe, sound and in good working order. • • Light fixtures shall (at a minimum) be equipped with CFL bulbs. i Exterior lighting fixtures used for security shall be equipped with a Five or more years of practical utility. motion sensor. Rehabilitation • Electrical switches, outlets and lighting fixtures that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are Practical, cost effective repairs are acceptable as long as compliance with the acceptable as long as compliance with the minimum standard will be minimum achieved. • All new light fixtures shall be U.L. approved and Energy Star qualified. Tune -up all HVAC equipment (as a minimum). • Outlets located within 6 feet of a source of water shall be ground fault • protected. • Exterior switches and outlets shall be weatherproof. Replacement i U.L. approved. Switches & Outlets Reputable manufacturer. Replacement ! Reputable manufacturer. Lighting Fixtures • U.L. approved and EPA Energy Star qualified. Minimum Standard . Additions and alterations that were constructed without a building permit and are clearly substandard shall be removed. • Garages converted to living quarters shall be returned to their original use. • Additions and alterations that were constructed without a building permit, but appear to be compliant, shall be inspected by the City's Building Official to determine if a building permit can be issued and they can be saved. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 19 335 Minimum Standard • Safe, sound and in good working order. • Five or more years of practical utility. Rehabilitation • HVAC that does not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Tune -up all HVAC equipment (as a minimum). • Seal all ducts (as a minimum). • All new HVAC equipment shall be sized properly. Furnaces • Reputable manufacturer. • EPA Energy Star qualified. Central Air Conditioners • Reputable manufacturer. • EPA Energy Star qualified. Thermostats • Reputable manufacturer. • EPA Energy Star qualified. • Programmable. Minimum Standard . Additions and alterations that were constructed without a building permit and are clearly substandard shall be removed. • Garages converted to living quarters shall be returned to their original use. • Additions and alterations that were constructed without a building permit, but appear to be compliant, shall be inspected by the City's Building Official to determine if a building permit can be issued and they can be saved. City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 19 335 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY AND BUSINESS AUTOMOBILE POLICIES Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # the following: relating to 1. The City of Santa Ana, 20 Civic Center Plaza M -25, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ( "additional insureds ") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza M -25, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to , this endorsement form as part of Name Insured Countersigned by: Authorized Representative City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 34 19E -36 EXHIBIT C TO BE INCLUDED IN PROPOSAL CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR AFFORDABLE HOUSING DEVELOPMENT PROPOSAL& CONTRACT AGREEMENT PROPOSER'S STATEMENT Proposer understands and agrees that this written RFP (or any part thereof specifically designated and accepted by the City of Santa Ana, hereinafter City) shall constitute the entire agreement between proposer and the City only after it has been accepted by the City Council, endorsed by the Clerk of the Council with her signature and official seal noting here on the action of approval of the Council, signed by the Executive Director or his duly authorized agent, and signed by the City Attorney, denoting her approval of the form of this document, and its execution, and when it or an exact copy of it has been either delivered to proposer or deposited with the United States Postal Service properly addressed to the proposer with the correct postage affixed thereto. Proposer further agrees that upon delivery (as defined above) of the accepted agreement he /she will furnish City all required bonds and certificates of liability insurance within ten (10) days (excluding Saturdays, Sundays and City's legal holidays), or the funds, check, draft, or proposer's bond substituted in lieu thereof accompanying this proposal shall become the property of the City and shall be considered as payment of damages due to the delay and other causes suffered by City because of the failure to enter into an Agreement and /or furnish the necessary bonds and because it is distinctly agreed that the proof of damages actually suffered by City is difficult to ascertain; otherwise said funds, check drafts, or proposer's bond substituted in lieu thereof shall be returned to the undersigned. Proposer understands that a proposal is required for the entire work, that the estimated quantities set forth in the RFP schedule are solely for the purpose of comparing proposals, and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. All terms contained in the Specifications, the Certification of Non - Discrimination by Developers, and the Workers' Compensation Insurance Certificate are to be incorporated by reference into this Agreement and are made specifically as part of this RFP. 3i5 SIGNED AND PRINTED NAME TITLE City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development 1§ 3 7 DATE EXHIBIT D TO BE INCLUDED IN PROPOSAL CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR AFFORDABLE HOUSING DEVELOPMENT PROPOSALAND CONTRACT AGREEMENT CERTIFICATION OF NONDISCRIMINATION BY DEVELOPER The undersigned Developer or corporate officer, during the performance of this contract, certifies as follows: The Developer shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Developer agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2. The Developer shall, in all solicitations or advertisements for employees placed by or on behalf of the Developer, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 3. The Developer shall send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Developer's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Developer shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 5. The Developer shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his /her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders. 6. In the event of the Developers non - compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the Developer may be declared ineligible for further Government contracts or federally assisted construction /services contracts in accordance with procedures authorized in Execution Order 11246 of September 24, 1965,and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law. 7. The Developer shall include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontract or purchase order as the administering agency may direct as City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 36 19E -38 means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the Developer becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the 8. Developer may request that the United States enter into such litigation to protect the interests of the United States. 9. Pursuant to California Labor Code Section 1735, as added by Chapter 643 Stats. 1039, and as amended, No discrimination shall be made in the employment of persons because of race, religious creed, color national origin, ancestry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any Developer violating this Section is subject to all the penalties imposed for a violation of the Chapter. 113 A SIGNED AND PRINTED NAME TITLE City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development eacLe 19 E 339 DATE EXHIBIT E TO BE INCLUDED IN PROPOSAL CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR AFFORDABLE HOUSING DEVELOPMENT NON - COLLUSION AFFIDAVIT CITY OF SANTA ANA PROPOSAL AND CONTRACT AGREEMENT NON- COLLUSION AFFIDAVIT (Title 23 United States Code Section 112 and Public Contract Code Section 7106) To the CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY In accordance with Title 23 United States Code Section 112 and Public Contract Code 7106 the PROPOSER declares that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the PROPOSER has not directly or indirectly induced or solicited any other PROPOSER to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived or agreed with any PROPOSER or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the PROPOSER has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the PROPOSER or any PROPOSER, or to fix any overhead, profit, or cost element of the bid price, or of that of any other PROPOSER, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the PROPOSER has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Note: The above Non - collusion Affidavit is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Non - collusion Affidavit. PROPOSERS are cautioned that making a false certification may subject the certifier to criminal prosecution. State of California County of Subscribed and sworn to (or affirmed) before me on this day of , 20 by proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me. Notary Public Signature Notary Public Seal City of Santa Ana Community Development Agency Request for Proposals for Affordable Housing Development Page 38 19E -40 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: SANTA ANA ARTS FUTURE COMMUNITY ENGAGEMENT WEEK (STRATEGIC PLAN NO. 5,5B) C CITY MAN ER RECOMMENDED ACTION Receive and file. DISCUSSION 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 Throughout the week of January 24, 2016, the Community Development Agency and the Cultural Planning Group (CPG) held the Santa Ana Arts Future Community Engagement Week. The week consisted of 26 community meetings, two community open houses, a town hall kick -off meeting and community conversations (Exhibit 1). As of the time of this report, over 100 individuals have participated in the town hall kick off and 40 participated in the Latino Cultural focus group. Various artist groups, residents, business owners and educators provided input on the role that arts and culture should play in Santa Ana. CPG will compile the input and incorporate it into the City's Arts & Culture Master Plan. Over a five -year period the City will invest up to $1,000,000 on Arts & Culture, including the Arts & Culture Master Plan, Public Art, Artist Grants, and other arts related activities and programming to enhance the quality of life in Santa Ana. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 Community Health, Livability, Engagement & Sustainability, Objective No. 5 (Promote a strong arts and culture infrastructure), Strategy B (Generate public and private support and resources to strengthen, expand and stabilize finding for the arts). FISCAL IMPACT There are no fiscal impacts associated with this action. 19F -1 ACC Artist Grant Program February 2, 2016 Page 2 Kelly Reenders Executive Director Community Development Agency KR/cd /sb Exhibit: 1. Outreach Materials 19F -2 Schedule of Events To view an update to schedule please visit: www.santa- ana.org /eda /aemp.aV To complete the survey online: www. survevLizmo .com /S.1/2474047/Santa- Ana - Community- Survey (Event [Event Arts Tuesday, January 26, 2:x6 Time Location Focused Organization �6:0o pm - 7:00 pm Santa Ana Regional Transportation Center r000 East Santa Ana Boulevard, 5th Floor Wednesday, January 27, 2oi6 Time (Location 2:00 pm - 3:00 pm Grand Central Art Center 125 North Broadway 2:00 pm - 3:00 pm Murals & Painting 3:30 pin - 4:30 pm Jewelry Design and Marketing 13:30 pm - 4:30 pm & Asian Leaders 13:30 pm - 4:30 pm 6:30 pm -8:30 pm Food Beast 305 West 4th Street Santora Building 1207 North Broadway, Suite Q Ebell Club 625 French Street Vietnamese American Arts & Letter Assoc. 1600 North Broadway, Suite 210 Phillips Hall Theater, Santa Ana College 1530 West 17th Street Thursday, January 28, 2oi6 Event Time [Loc anon Group am - 9:3o am The Robbins Nest 207 West 2nd Street Word, Theater and Performing Arts 8:3o am - 9:3o am Santa Ana Regional Transportation Center Teaching Artists Historical Preservation r000 East Santa Ana Boulevard, 4th Floor (10:0o am -11:oo am The Wooden Floor 118io North Main Street 10:00 am - ll:oo am Heritage Museum 3101 West Harvard Street ournalism, Broadcast & New Media 10:0o am -11:0o am Frida Cinema 305 East 4th Street (Film /Theatre Production 11:30 pm - 12:30 pm (Frida Cinema 305 East 4th Street & Gallery Spaces Large Art s Organizations (Veterans 11:3o am - 12:30 pm Santora Building 207 North Broadway, Suite Q 2:0 0 pm - 3:00 pm Bowers Museum 2002 North Main Street, Board Room 2:00 pm - 3:00 pm Santa Ana Regional Transportation Center i 1000 East Santa Ana Boulevard, Suite 220 - EfW3 (Young Professional /Entrepreneurs Tech and Media Arts Community Open House Arts Education, Teachers K -12 Poetry, Community and Professional ,Event ".. Community Open House Festivals Youth [Community Artists Children & Families Under 30 3:30 pm - 4:300 pm 'Batch - 1 j (204 East 4th Street, Suite H 13:30 pm - 4:30 pm Digital Media Center 11300 j South Bristol Street �5:30 pm - 7:30 pm Bowers Museum 2002 North Main Street ' Friday, January 29, 2o16 FTime ILOeatlon 1o:oo am -11:oo am Frida Cinema 1305 East 4th Street 11o:oo am -11:oo am Logan Creative j800 East Washington Avenue 11:30 am -12:30 pm ;SAUSD District Office 16o1 East Chestnut Avenue iLab Room 1o6 11:3o am -12:30 pm lSantora Building 1207 North Broadway, Suite Q Saturday, January 30, 2o16 (Time Location 9:00 am - 11 0o am Delhi Center 1505 East Central Avenue :oo am - n:oo am ISantaAna Regional Transportation Center jl000 East Santa Ana Boulevard, 5th Floor :3o am -12:30 pm Latino Health Access 450 West 4th Street, #130 00 PER -1:30 pm IMC Gallery (2202 1/2 North Main Street (Entrance through the back :30 pm - 2:00 pm OC Children s Therapeutic Arts 2215 North Broadway 00 pm - 4:30 pm lFrida Cinema 1305 East 4th Street 19F -4 SANTA ANA 1 R R January 1 6:30 " 4 • /. Santa r College V71 -.ALT 51 and culture in Santa Ana If you need special assistance to participate in this event, please contact the City ADA Program Coordinator at (714) 647 -5624. Please call prior to the meeting date to allow the City enough time to make reasonable arrangements for accessibility to this event. [Americans with Disabilities Act, Title II, 28 CFR 35.1021 19F-5 EL FUTURO DE LAS ARTES DE SANTA ANA January 27,, 2016 r PM a cultura en Santa Ana Si necesita asistencia especial para participar en este evento, por favor comuniquese con el Coordinador del Programa ADA al (714) 647 -5624. Por favor Ilame antes de la fecha de la reuni6n para permitir que la Ciudad tenga el tiempo suficiente para hacer los arreglos razonables para el acceso a este evento. [Americans with Disabilities Act, Title II, 28 CFR 35.102] (ADA, siglas en ingles es la Ley sobre Estadounidenses con DiscatsipdgB) Discussion Guide What is the Santa Ana Arts and Cultural Plan? Over the next 6 months, The City of Santa Ana and The Cultural Planning Group (CPG) will provide an opportunity for Santa Ana's many communities and neighborhoods to create a cultural blueprint highlighting the city's arts strengths and setting innovative goals for the future. We'll look at community organizations and individual artists; cultural spaces and facilities; our cultural heritage and communities; our festivals and events; and creative industries and occupations. We want to imagine what our future can be and then make a plan to reach that goal. Community Engagement Contacts Questions or suggestions? Contact our project managers: Gabriela Cramer @ 714.647.5385 or gcramer(u7santa-ana.org Linda Flynn @ lindaC&culturalplanning.com 19F -7 Arts and Culture Introduction When speaking about arts and culture, many of us visualize different things — different ways we like to express our creativity, and different ways we enjoy the arts and the culture in our communities. Everyone creates in some way and we all participate in one way or another — whether it be playing an instrument, digital media, taking photographs, writing, graphic design, etc. Today, we want to listen about what makes your community unique, what you value about your quality of life here in Santa Ana or in your neighborhood, and also what you think can be improved or different, or what you want to see more of. Discussion Questions Introductions /Round Robin: [Go around room and ask all to introduce themselves, say where they are from, and give a brief description of "what they do ?" What they make ?" or "how they participate "? Have a couple of people start who you know can give simple examples_ (taking photographs, baking, drawing, take art lessons, use art in their work, etc...) 1. Thinking about _____[community neighborhood], let's talk about what you think makes it great. What are the "gems" or great places we should know about as we are creating this plan? (Examples: theaters, places, organizations, etc.) 2. Is there anyone you know of who we should be sure to include in this conversation? [A creative leader, a trusted person in your community] 3. Let's think about the future of your community or for Santa Ana as a whole, what do you want to be different from today in your community? In Santa Ana? [What do you want more of? What is working? What is not working? (Examples: public art, street performances, live arts events, better arts education in schools, etc.) 4. What role do you think the City of Santa Ana should play in this vision? S. Now do you find out about arts, cultural or entertainment events and activities in Santa Ana ? What is your preferred resource? 6. Describe in one word or phrase what you want the cultural plan to do for your neighborhood? [See additional activities] 19F -8 2 Community Conversation Guide & Tips Introduction Community Conversations engage a community in thoughtful dialogue about various topics using a toolkit and a facilitator from your local community. Our planning process is a shared endeavor with the community that encourages participation of all citizens. Community Conversations provide arenas in which people come together for thoughtful discussion and dialogue about arts and culture in your community —past, present, and future. The Facilitator The facilitator of a Community Conversation will be the person in charge of asking thoughtful questions and moderating the conversation among all participants. The facilitator is responsible for documenting the thoughts, ideas, and themes of the conversation. Facilitator Tips: • Emphasize confidentiality to the group – all data is reported only in the aggregate (no data is attributed to an individual) • Always respect each person's opinion • Invite and encourage different, multiple perspectives and ideas • Encourage group to build meaning together • Reference group comments and ideas to continue the conversation • Group involvement 85 %, Facilitator involvement 15% Gathering an Audience We can help brainstorm lists of meetings and audiences that may work for your conversation. We encourage you to think about any meetings you attend, associations you belong to, and /or colleagues and friends who should be part of this conversation. Consider local places of worship, community centers, neighborhood associations, book clubs, cultural institutions, senior centers, and service organizations (youth, disabled, etc). Ask them if they have a meeting or event where a community conversation can be placed on the agenda. Group Size and Duration Try to gather a group of at least 5 but no more than 25 people. Although, any size group that has thoughtful dialogue about this process is valuable. Conversations are usually about 30 - 60 minutes in duration. 3 19F -9 Materials 1. Sign -in Sheet 2. Discussion Guide /Sample Activities 3. The Community Cultural Plan Summary 4. Smart Phone /Camera — optional (but would love photos of the meeting (with permission from participants) Please keep in mind.... — Each meeting may go a little differently. Some groups may be eager to have long discussions, and some may be more pressed for time. — Discussion guides are just that — guides. Feel free to customize to your own voice and style. — Conversation may wander off the specific areas listed in the guide. That is great if still about arts and culture and economic development. Most AHA! moments come from the community! Meeting Process: • Introduction • General introduction of The Cultural Planning Process c Introduction of arts and culture • Discussion and Probes • Introduce question and perhaps give your own example or story to get the conversation flowing. • Use probes and follow -up questions if answers are vague. • PLEASE REMEMBER TO PROMOTE THE SURVEY — (HAND OUT CARDS WITH WEBSITE INFORMATION) Note taking: • Listen for key themes and ideas • Please record any great quotes you hear! • Note if hearing similar responses from multiple members /or groups — (i.e. all members agree that there is that ONE thing Santa Ana really needs to do for arts and culture). • Note if you think there are any individuals who warrant follow up after the meeting. Materials Submission • Notes should be recorded in Word or Google Docs • All notes, and photos can be ema!led gcramerflsanta- ana.org C! 19F -10 ilk • CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: RELEASE THE ARTIST GRANT OPPORTUNITY APPLICATION (STRATEGIC PLAN NO. 5, 5C} CITY MANAGER RECOMMENDED ACTIONS 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 Community Development Agency staff to release the Fiscal Year 2016 -2017 Investing in the Artist Grant Opportunity application. DISCUSSION The Investing in the Artist Grant Opportunity will distribute funds to local emerging & established artists and art organizations in order to enrich and invigorate the Santa Ana arts and culture landscape. The funds will aid artists to further their artistic creativity while residing, working or creating a specific project for the benefit of Santa Ana's community. The artist grant funding may be applied towards artistic needs small and large, depending on the proposal. Grants for arts organizations would support special events, arts and cultural programming, and non - profit essentials, such as materials, supplies, special event production and community engagements. In Fiscal Year 2015 -2016, a total of $85,000 was awarded to selected artists and art organizations. Awardees received grants in the amounts of either $5,000 or $10,000. Grant funding for six artists totaling $45,000 was applied towards artist project including time, travel, research, equipment, and supplies. Grant funding for five art organizations totaling $40,000 was applied towards special events, special projects, equipment, and supplies. To date 2,035 youth have participated in art workshops hosted by grant recipients in Santa Ana. Recipients attest to the joy, confidence, teamwork and respect that have developed by participating in these projects. Timid and shy youth reported that they were more confident by the end of these workshops. For Fiscal Year 2016 -2017, approximately $70,000 is anticipated to be distributed; $40,000 for art organizations and $30,000 for artists. However, Staff is recommending revising the grant amounts to four $10,000 grants available for arts organizations and six to twelve grants for artists in the amount of $2,500 - $5,000. 21A-1 Release Artist Grant Opportuntity Application February 2, 2016 Page 2 Staff Is requesting authorization to release the Investing in the Artist Grant Opportunity application (Exhibit 1 & 2) to solicit project proposals for emerging & established artists and arts organizations. An outside panel will evaluate and recommend the applications for awards in the amounts of $10,000 for art organizations and $2,500 or $5,000 for artists, Applications for qualified panelists will be available on February 8, 2016 on the City's website. The recommendations will be presented to the Arts & Culture Commission and then to City Council for approval tentatively scheduled for July. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 Community Health, Livability, Engagement & Sustainability, Objective #5 (Promote a strong arts and culture infrastructure), Strategy C (Promote arts and culture by partnering with artist groups and merchants to hold events celebrating art in public plazas, parks and other Cityoontrolled open space), FISCAL IMPACT There is no fiscal impact associated with this action, i Kelly Reen rs Executive Director Community Development Agency KR /CD /sb Exhibits: 1. Investing in the Artist Grant Opportunity Artist Application 2. Investing in the Artist Grant Opportunity Art Organization Application 21A-2 INVESTING IN THE ARTIST ' GRANT OPPORTUNITY INDIVIDUAL APPLICATION Understanding that a financial barrier is often times all that stands in the way of an artists' next critical step in their career, Investing in the Artist grants distribute small, but impactful funds to emerging and established artists, serving as a catalyst to further their work while living and creating in Santa Ana, resulting in a more vibrant local art scene. Funding may be applied towards artistic needs small and large, depending on the proposal. The Santa Ana Arts and Culture Commission supports ambitious projects that embrace experimentation and focus on process, as well as emerging artist essentials, such as materials, supplies, professional development, or business and website fees. Grants will be awarded in the amount of $2,500 or $5,000 and will be distributed in two payments. The grant period will be for 12 months and will require an interim and a final report on outcomes achieved. The first payment will be disbursed at the commencement of the grant period, and the second payment will be disbursed after completion of an interim report. Interim and final reports will require documentation, such as receipts, to support grant expenditures. ELIGIBILITY CRITERIA Individual artists working in the following mediums are welcome to apply: Visual H Performing � Musical H Literary H Film H Textile Arts � Multimedia • Artists must be currently living and creating work in Santa Ana or create a work that is for the benefit of Santa Ana arts community. • Project must be completed in Santa Ana and /or directly serve the Santa Ana arts community • Applicants must be over the age of 18. • Grant funds may not be used for tuition or academic expenses. • City of Santa Ana employees, elected officials, and commission members are ineligible. • Artist Project (Santa Ana artist seeking funds for a specific project, including travel and research) • Equipment/Supplies (Santa Ana artist seeking funds for specific arts equipment or supplies, including funds for services such as websites and professional development) 'Santa Ana artist is defined as an artist that primarily lives and works in Santa Ana or will complete a specific project for the benefit of Santa Ana arts and culture community. CONFLICT OF INTEREST The Arts and Culture Commission ( "Commission") members are actively involved in the arts professionally and /or personally. The Commission desires to avoid situations which may com- promise, or appear to compromise, members' objectivity while not preventing their continuing involvement in the arts, or in projects supported by the Commission and City. If the Commis- sion member has a professional, fiduciary, or personal relationship with an applicant, the Com- mission member must notify the Commission of the relationship before the panel meeting or re- view of the applicant. The Commission member must also excuse himself /herself from the room during the discussion of the applicant, and may not discuss the application with any other mem- ber of the Commission prior to, during, or after discussion of the application. EXHI IT 1 21 -3 EVALUATION Artist applications will be evaluated on the following criteria: • Project Merit — 40% • Artist Portfolio —30% • Potential Community Impact — 20% • Individual Need —10% PORTFOLIO REQUIREMENTS Online submissions, please upload work directly onto online application using formatting guidelines listed below, or include links to online portfolio. Hard copy submissions, please follow guidelines listed below. Please do not submit any original artwork. Work will not be returned. Visua /Arts (including painting, sculpture, textile arts, all physical artwork): • Five (5) images maximum of demonstrating your best work • Images must be printed or in jpeg format on one CD or uploaded to online submission site. • Clearly label each image file with "title last name, first name" — Example "Art Brown, John" • You may choose to submit a single PowerPoint presentation of your work with your name, title, size, date, medium on each slide. PowerPoint presentation must be copied onto one disk. Musicians • You may submit up to five (5) songs or compositions of your best work. For online submissions, files may be uploaded as mp3 files. Links to Soundcloud, YouTube, or other online music showcases are acceptable. • If submitting a hard copy, please submit music on a playable CD. • Please note: Individual songs exceeding three minutes may not be heard in their entirety. • Label each file with "title last name, first name" — Example "Music Brown, John" Film/Media/Pei—forming Arts • You may submit up to five (5) short film/multimedia files. For online submissions, files may be uploaded as mp4 or .mov format. Links to online portfolio, YouTube, Vimeo or other video sharing sites are acceptable. • If submitting a hard copy, video files must be submitted on a playable CD. Please note: Individual films exceeding ten minutes may not be viewed in their entirety. Label each file with "title last name, first name" — Example "Video Brown, John" Writers • You may upload writing samples as Word or PDF files on the online submission site. Label each file "title—last name, first name" - Example "Fiction_ Brown, John" • If submitting hard copy, please print the manuscript sample and include with application packet. • Please use the following format for manuscripts: Times New Roman or Courier, 12 point font, double- spaced. • Fiction: 10 pages max. • Non - Fiction: 10 pages max. • Poetry: 5 poems (10 pages max.) Poetry may be formatted as the poet determines best suits the poem, but the manuscript must be legible. • Screenplays: 5 pages of dialogue + 1 synopsis. 21A-4 Applications must contain the following documents to be considered for funding: 1. Application Cover Sheet (use attached) 2. Checldist (use attached) 3. Narrative for proposed use of funds and supplemental questions: o Please describe any additional City of Santa Ana resources required for your project (permits, public space, licenses etc.). o Is this a new or existing program/project? o How will the proposed project be presented or shared with the public? Will the art display, event or performance be free and accessible to the public? o How will your project enrich the Santa Ana arts and culture community? Please do not exceed 2 pages for the narrative and supplemental questions. Please follow these formatting guidelines: Double spaced, 12 point Times New Roman, inch margins. 4. Portfolio (see guidelines) 5. Project Timeline (sample attached) 6. Line Item Budget (use attached) 7. One signed Letter of Support from an academic reference or reference from within the creative arts. If letter is in language other than English, please provide English translation. Applications must be submitted by 4 P.M., May, 2, 2016 via one of the following methods: Mail /Hand Delivery: City of Santa Ana Investing In the Artist Grant Administration Community Development Agency M -25 20 Civic Center Plaza, 6th floor Santa Ana, CA 92701 CONTACT Website: https://cityofsantaana.submittable.com/submit For questions regarding the application contact Kelly Reenders at (714) 647 -5360 or kreenders(a)santa- ana,org. ANTICIPATED TIMELINE 02/08/16 Applications available 02/22/16 03/07/16 03/22/16 Information Session - 5:30 pm 20 Civic Center Plaza, Room 1600 05/02/16 Applications due by 4 p.m. 06/16/16 Funding recommendations from Commission 07/05/16 City Council Approval of Grant Awards 08/18/16 Grant Recipient Reception 21A-5 INVESTING IN THE ARTIST APPLICATION COVERSHEET APPLICATION DUE DATE: Monday, May 2 n, 4:00 P.M. City Ward of Residence: Date Submitted: City Ward of Project: Name of Applicant: Address: Phone Number: Email: Website: Letter of Support- Name & Affiliation: Brief Description of Project: Type of Application: ❑ Artist is based in Santa Ana ❑ Artist is not based in Santa Ana and proposes to use 100% of grant funds for a project based in Santa Ana Need: ❑ $2,500 ❑ $5,000 I am applying for: ❑ Equipment ❑ Materials & Supplies ❑Other City of Santa Ana, Community Development Agency 20 Civic Center Plaza, M -25, Santa Ana, CA 92701 (714) 647 -5360 21A-6 INVESTING IN THE ARTIST CHECKLIST ❑ Application Cover Sheet ❑ Checklist ❑ Artist Statement (1 page limit, Times New Roman 12 -point font, double- spaced, 1 inch margins) ❑ Artist Resume /CV (2 page limit, Times New Roman 12 -point font, double- spaced, 1 inch margins) ❑ Brief narrative for proposed use of funds and supplemental questions (2 page limit, Times New Roman 12 -point font, double- spaced, 1 inch margins) Supplemental Questions: • Please describe any additional City of Santa Ana resources required for your project (permits, public space, licenses etc.)? • Is this a new or existing program/project? • How will the proposed project be presented or shared with the public? Will the art display, event or performance be free and accessible to the public? • How will this project enrich the Santa Ana arts and culture community? ❑ Portfolio (see Portfolio Requirements) ❑ One signed Letter of Support on professional letterhead. If letter is in language other than English, please provide English translation. ❑ Project Timeline (sample attached) ❑ Line Item Budget — include equipment, supplies, material, and studio and/or space rental 21A-7 INVESTING IN THE ARTIST SAMPLE PROJECT TIMELINE DATE ACTION OUTCOME 21A-8 INVESTING IN THE ARTIST LINE ITEM BUDGET PROPOSED GRANT FUNDED PROGRAMMING SERVICES EQUIPMENT, MATERIALS AND SUPPLIES (equipment, material , supplies for project) tity Qtity Unit Cost Total Cost Funds Requested NAL tAF'tNJtJ Description Total Cost Grant Funds (permits, fees, facility rental for project) Requested Artist is responsible for maintaining documentation of expenses paid for with grant funds. Documentation, such as receipts for expenses, will be required for submittal on the interim and final reports. If receipts are not available for certain expenses, a certifi- cation from the artist certifying the expense may be accepted on a case by case basis. 21A-9 INVESTING IN THE ARTIST LINE ITEM BUDGET PROPOSED PROGRAM BUDGET PROPOSAL Enter budget cateaories and proiected expenditures for the proposed program: Category Expenditures Funded By Santa Ana Grant Expenditures Funded By Other Sources (Including in- kind) Total Project Budget Equipment Total Supplies Total Materials Total TOTAL PROJECT REVENUE LIST ALL OTHER PROJECT RESOURCES "Funaina Source" total must equal "I otal Project duaget IlStea aDove. I FUNDING SOURCE I AMOUNT Santa Ana Artist Grant I TOTAL PROGRAM BUDGET I I City of Santa Ana, Community Development Agency 20 Civic Center Plaza, M -25, Santa Ana, CA 92701 (714) 647 -5360 21A =10 INVESTING IN THE ARTIST :�_:_:� ' GRANT OPPORTUNITY ORGANIZATION APPLICATION Investing in the Artist grants distribute small, but impactful funds to emerging and established arts organizations, serving as a catalyst to further their work while living and creating in Santa Ana, resulting in a more vibrant local art scene. FUNDING The Santa Ana Arts and Culture Commission is seeking to fund grants in the amount of $10,000 to organizations that will enrich and invigorate the Santa Ana arts and culture landscape. Grants will be awarded for arts and culture nonprofit organizations to support programming costs, equipment, and special events. Funding will be provided through reimbursements for eligible Investing in the Artist expenses. Organizations must be financially viable in order to make the expenditures, submit receipts and documentation for reimbursement by the City. Funding may be applied towards artistic needs small and large, depending on the proposal. The Santa Ana Arts and Culture Commission supports special events, arts and cultural programming, and nonprofit essentials such as materials, supplies, special event production, and community engagement. Administrative and operational expenses are not eligible for funding. Grants will require a final report of outcomes achieved. ELIGIBILITY CRITERIA Nonprofit arts and culture organizations that meet the following criteria are welcome to apply: • Organizations with arts and culture focus • Organization must be based in Santa Ana and/or serve Santa Ana communities • City of Santa Ana employees, elected officials, and commission members are ineligible FUNDING REQUIREMENTS Organizations will be required to obtain/demonstrate the following prior to an award: Current City of Santa Ana business license Current General Liability insurance in the amount of $1,000,000 naming the City of Santa Ana as Additional Insured on a primary and non contributory basis Active nonprofit status and good standing with IRS FUNDING PRIORITIES • Equipment/Supplies - Organization seeking funds for specific arts equipment or supplies • Special Event - Organization seeking funds to support a special event that will enrich the Santa Ana arts and culture community • Special Projects CONFLICT OF INTEREST The Arts and Culture Commission ( "Commission ") members are actively involved in the arts professionally and/or personally. The Commission desires to avoid situations which may com- promise, or appear to compromise, members' objectivity while not preventing their continuing involvement in the arts, or in projects supported by the Commission and City. If the Commis- sion member has a professional, fiduciary, or personal relationship with an applicant, the Com- mission member must notify the Commission of the relationship before the panel meeting or re- view of the applicant. The Commission member must also excuse himself /herself from the room during the discussion of the applicant, and may not discuss the application with any other mem- ber of the Commission prior to, during, or after discussion of the application. EXHIBIT 2 21A -11 EVALUATION CRITERIA Organization applications will evaluated on the following criteria: • Project Merit - 50% Organization Need - 25% • Potential Community Impact- 25% SUBMISSION REQUIREMENTS Applications must contain the following documents to be considered for funding: 1. Application Cover Sheet (use attached) 2. Checklist (use attached) 3. Organization Mission and History 4. List of Key Staff/Board of Directors (Resume /CV if applicable) Limit 2 pages. 5. Narrative for proposed use of funds and supplemental questions: • Please describe any additional City of Santa Ana resources required for your project (permits, public space, licenses etc.). • Is this a new or existing program/project? • How will the proposed project be presented or shared with the public? Will the art display, event or performance be free and accessible to the public? • How will this project enrich the Santa Ana arts and culture community? Please do not exceed 2 pages for the narrative and supplemental questions. Please follow these formatting guidelines: Double spaced, 12 point Times New Raman. 6. Project Timeline (sample attached) 7. Line Item Budget (use attached) 8. One signed Letter of Conununity Support (preferably from within the community organization/professional seeks to impact). If letter is in language other than English, please provide English translation. Applications must be submitted by 4 P.M., May, 2, 2016 via one of the following methods: Mail /Hand Delivery: City of Santa Ana Investing In the Artist Grant Administration Community Development Agency M -25 20 Civic Center Plaza, 6th floor Santa Ana, CA 92701 Website: https://cityofsantaana.submittable.com/submit CONTACT For questions regarding the application contact Kelly Reenders at (714) 647 -5360 or kreendersAsanta- ana.org. 2 1A212 ANTICIPATED TIMELINE 02/08/16 Applications available 02/22/16 03/07/16 03/22/16 Information Session — 5:30 p.m. 20 Civic Center Plaza, Room 1600 05/02/16 Applications due by 4 p.m. 06/16/16 Funding recommendations from Commission 07/05/16 City Council Approval of Grant Awards 08/18/16 Grant Recipient Reception 21A -13 INVESTING IN THE ARTIST APPLICATION COVERSHEET APPLICATION DUE DATE: Monday, May 2 ?a 4:00 P.M. Date Submitted: Organization Name: Organization Address: Contact Person/Title: Phone Number: Website: Brief Description of Project: Email: City Ward of Project: Tax ID #: Type of Application: ❑ Organization is based in Santa Ana and proposes to use grant funds to provide arts and culture programming in Santa Ana ❑ Organization is not based in Santa Ana and proposes to use grant funds to provide arts and culture programming in Santa Ana Need: ❑ $10,000 We are applying for: ❑ Programming Costs ❑ Equipment ❑ Special Events ❑Other City of Santa Ana, Community Development Agency 20 Civic Center Plaza, M -25, Santa Ana, CA 92701 (714) 647 -5360 21A414 INVESTING IN THE ARTIST CHECKLIST ❑ Application Cover Sheet ❑ Checklist ❑ Organization Mission and History (1 page limit, Times New Roman 12 -point font, double- spaced, 1 inch margins) ❑ List of Key Staff/Board of Directors (1 Page) ❑ Narrative for proposed use of funds and supplemental questions (1 page limit, Times New Roman 12 -point font, double- spaced, 1 inch margins) Supplemental Questions: • Please describe any additional City of Santa Ana resources required for your project (permits, public space, licenses etc.)? • Is this a new or existing program/project? • How will the proposed project be presented or shared with the public? Will the art display, event or performance be free and accessible to the public? • How will this project enrich the Santa Ana arts and culture community? ❑ Project Timeline ❑ Line Item Budget ❑ One signed Letter of Community Support - preferably from within the community organization/professional seeks to impact (if letter is in language other than English, please provide English translation) 21A -15 INVESTING IN THE ARTIST SAMPLE PROJECT TIMELINE DATE ACTION OUTCOME 21A -16 INVESTING IN THE ARTIST LINE ITEM BUDGFT PROPOSED GRANT FUNDED PROGRAMMING SERVICES PERSONNEL Description of Personnel (contracted instructors, lecturer honorarium, artist stipend etc.) Total Compensation Grant Funds Requested Total Cost Grant Funds Requested EQUIPMENT, MATERIALS AND SUPPLIES ITEM (equipment, material and supplies) Quantity Unit Cost Total Cost Grant Funds Requested SPECIAL EVENTS Description (permits, fees, facility rental) Total Cost Grant Funds Requested 21A -17 INVESTING IN THE ARTIST LINE ITEM BUDGET PROPOSED PROGRAM BUDGET PROPOSAL Enter budget categories and projected expenditures for the proposed program: Category Expenditures Funded By Santa Ana Grant Expenditures Funded By Other Sources (Including in- kind) Total Program Budget Total Organization Budget Administrative Staff Salaries and Benefits Contractual/Professional Services /Stipends Equipment, Material, & Supplies Special Events Production TOTAL PROGRAM REVENUE LIST ALL OTHER PROGRAM RESOURCES - unainq source" total must equal i otai rrogram ouuget usteu auuve I FUNDING SOURCE AMOUNT I I Santa Ana Artist Grant I I TOTAL PROGRAM BUDGET 21A -18 CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: CONTRACT AWARD TO SMART & FINAL STORES LLC FOR SUNDRY FOOD AND PAPER GOODS (SPEC. NO. 16 -010) (STRATEGIC PLAN NO. 2,2; 5,4) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on1 "Reading ❑ Ordinance on 2ndReading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Award a contract to Smart & Final Stores LLC for sundry food and paper goods for a three -year period expiring January 31, 2019, in an annual amount of $45,000, for a total amount not to exceed $135,000, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION City agencies purchase snacks and refreshments to provide participants during various City - sponsored events. The Parks, Recreation and Community Services Agency (PRCSA) operates various youth guidance and teen mentoring programs including Summer Day Camp, After School Adventures, Teen Space and Project PRIDE, which brings families together with interactive events. PRCSA staff also organizes an annual Catalina Island campout for approximately 70 underprivileged Santa Ana youth. The Santa Ana Library provides treat bags to participants in its reading incentive program. The Senior Centers provide snacks and refreshments for social activities. The Police Department purchases paper goods and refreshments for programs such as Parent/Teen Academy and Santa Ana Police Athletic & Activity League. Smart & Final is a local Santa Ana vendor offering the convenience of a charge account, supplies in bulk and, due to its proximity, an efficient way for approximately 40 City employees to obtain a variety of supplies for City events and programs at a reduced cost. As such, staff recommends approval of the recommended action. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #2 - Youth, Education, Recreation, Objective #2 (expand youth programming) and Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (support neighborhood vitality and livability). 22A -1 Contract Award for Sundry Food and Paper Products February 2, 2016 Page 2 FISCAL IMPACT Funds in the amount of $22,500 for the remainder of FY 2015 -16 are available in the Parks, Recreation and Community Services Strategic Plan Project account (05213018- 63001) for $15,000, in the Public Library Grant account (15211150- 63001) for $5,000 and in the General Non - Departmental account (01105015- 63001) for $2,500. Funds in the amount of $90,000 for FY 2016 -17 and 2017 -18 and $22,500 for FY 2018 -19 will be budgeted and made available in the following accounts: • $75,000 in the PRCA Strategic Plan Project account (05213018 - 63001) • $25,000 in the Public Library Grant account (15211150- 63001) • $12,500 in the General Non - Departmental account (01105015- 63001) y Gerardo Mouet Executive Director Parks, Rec. & Comm EG /sp Svcs. Agency APPROVED AS TO FUNDS AND ACCOUNTS: 4 S�.,ei° Francisco Gutierrez QJ_ Executive Director Finance and Management Services Agency 22A -2 10101110 < • CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: CONTRACT AWARD TO SELECT TRENCHLESS PIPELINES, INC., FOR SANITARY SEWER LATERAL LINING SERVICES (SPEC. NO. 15 -087) {STRATEGIC PLAN NO. 6, 1C, 1F) CITY MANAGE RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to award a contract to Select Trenchless Pipelines, Inc., for sanitary sewer lateral lining services for a three -year period expiring January 31, 2019 in the amount of $150,000, with provisions for one two -year renewal option exercisable by the City Manager and City Attorney, in an annual amount not to exceed $50,000; subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The Public Works Agency Water Resources Division operates a sanitary sewer collection system comprised of approximately 390 miles of sewer mains; two sewer lift stations; 48,500 sewer laterals; and 8,000 sewer manholes used to convey all sewer effluent from the City into the Orange County Sanitation District system for treatment. This contract provides for the rehabilitation of portions of the sanitary sewer system by means of sewer lateral lining, a trenchless technology method. Where applicable, this method is cost effective, less disruptive to traffic, and extends the useful life of sewer laterals that serve residents. The City has been providing a sewer lateral rehabilitation program to residents since the early 2000s. The sewer lateral program allows the City to assist residents with problems on the portion of their lateral that is located within the City public right -of -way by repairing or replacing the damaged section. This service will allow the Sewer Division to have an additional option to rehabilitate a sewer lateral with this trenchless method, given the site field conditions. The Notice Inviting Bids was advertised on October 6, 2015 on the City's online bid management and publication system. A summary of the bid invitations and bids received is as follows: 20 Vendors notified 3 Bids received 0 Bids received from Santa Ana vendors 22B -1 Contract Award for Sewer Lateral Lining Services February 2, 2016 Page 2 Bids were received and evaluated on October 29, 2015 (Exhibit 1). The bid received from Select Trenchless Pipelines, Inc., meets the City's requirements for maximum quality service at the minimum price and complies with prevailing wage requirements (Exhibit 2). The annual not -to- exceed contract amount is based on the projected budget allocation for these services. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy C (invest resources and technology to extend the service life of existing infrastructure to protect the City's investment and support a high quality of life standard), and Strategy F (perform periodic measurements to monitor and update each asset's condition and ensure adequate funding for repair and /or replacement costs in future budgets). FISCAL IMPACT Funds in the amount of $50,000 are available in FY 2015 -16 Sanitary Sewer Service account (05617640- 62300). Subsequent funding of $50,000 will be budgeted in FY 2016 -17, FY 2017 -18, FY 2018 -19, FY 2019 -20. See below for more details: Contract Period (three - years) Fiscal Year Amount 2015 -16 (Feb -Jun) $50,000 2016 -17 $50,000 2017 -18 $50,000 Total $150,000 Renewal Period (1 two -year renewal) Fiscal Year Amount 2018 -19 $50,000 2019 -20 $50,000 Total $100,000 4 I Executive Director Public Works Agency FM /NS /bi /sp Exhibit: 1. Abstract of Bids APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 228 -2 ABSTRACT OF BIDS SEWER LATERAL LINING SERVICES (15 -087) BIDDER • • Select Trenchless Pipelines, Inc. Riverside, CA TOTAL $33,675.00 Morr -is Tested Inc. Yorba Linda, CA $46,020.00 Roto- Rooter Services and Plumbing Mission Viejo, CA $113,870.00 Exhibit 1 22B -3 22B -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: OF WASHINGTON SQUARE RESIDENTIAL STREET REPAIR FY 2015 -16 (PROJECT NO. 16 -7523) {STRATEGIC PLAN NO. 6, 1B, 1G} CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For �— CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Reject all bids received on December 1, 2015, for construction of the Washington Square Residential Street Repair Project, due to required federal funding documents that were not included. 2. Award a contract to EBS General Engineering Inc., the lowest responsible bidder, in accordance with the base bid of $984,925 for construction of the Washington Square Residential Street Repair Project, and authorize the City Manager and Clerk of the Council to execute the contract, subject to nonsubstantive changes approved by the City Manager and City Attorney. 3. Approve the Project Cost Analysis for a total estimated project delivery cost of $1,231,157, which includes the contract base amount, administration, inspection, testing, and an authorized contingency of $98,493. DISCUSSION The City's Residential Street Repair Program supports efforts to rebuild neighborhood streets throughout the city that are in need of repair. Approval of this action will provide for construction of residential street repairs within the Washington Square Neighborhood. The recommended local street segments are deteriorated due to weather, age, and heavy usage, and have been identified as a high priority by the City's Pavement Management System (Exhibit 1). The project consists of replacing damaged concrete roadway panels and repairing concrete curbs, gutters, sidewalks, cross gutters, and curbs ramps. Once completed, these improvements will enhance the ride quality, surface drainage, and appearance of the neighborhood. The Washington Square Residential Street Repair Project is funded by Community Development Block Grant funds. When the project was originally advertised for bids on November 13 and 18, 2015, the specific federal documents required for this funding were inadvertently omitted from the 23A -1 Contract Award For Construction of Washington Square Residential Street Repair FY 15 -16 February 2, 2016 Page 2 bid package. As a result, the bids opened on December 1, 2015, were incomplete. Therefore, to keep the project eligible for the programmed federal funds, rebidding was necessary. The project was advertised again on December 8 and 15, 2015, and bids were opened on December 30, 2015. The following is a summary of the bid invitations made and the bids received: Contractor Participation Data Santa Ana contractors receiving notices 14 Contractors requesting bidding documents 10 Bids received 4 Bids received from Santa Ana contractors 1 Bid Results Summary RANK BIDDER'S NAME LOCATION BASE BID AMT 1 EBS General Engineering Inc. Corona $984,925 2 Hardy & Harper Inc. Santa Ana $1,111,000 3 Excel Paving Inc. Long Beach $1,287,142 4 CS Legacy Construction, Inc. Pomona $1,333,253 Four bids were received and considered responsive, with EBS General Engineering Inc. submitting the lowest responsive bid (Exhibit 2). The base bid amount of $984,925 is below the engineer's estimate of $1,528,048. Based on the bids received, staff recommends award of this contract to EBS General Engineering Inc. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy B (equitably maintain existing streets and associated assets in a state of good repair so they are clean, safe, and aesthetically pleasing for all users), and Strategy G (develop and implement the City's Capital Improvement Program in coordination with the Community Investment Plan (e.g., neighborhood streets, traffic improvements, etc.). ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended actions are exempt from further review. Categorical Exemption Environmental Review No. 2015 -29 was filed for these projects. 23A -2 Contract Award For Construction of Washington Square Residential Street Repair FY 15 -16 February 2, 2016 Page 3 FISCAL IMPACT The estimated total delivery cost of this project is $1,231,157, which includes construction, contract administration, inspection, testing, surveying, and contingencies (Exhibit 3). The Washington Square Residential Street Repair Project (16 -7523) was approved in the Fiscal Year 2015 -16 Capital Improvement Program for a total budget of $2,121,296. Sufficient funding for this agreement is available for expenditure in the Fiscal Year 2015 -16 Community Development Block Grant Fund (Account No. 13518783 - 66220) until project completion, which is scheduled in Fiscal Year 2016 -17. APPROVED AS TO FUNDS AND ACCOUNTS: IYA V/, r d Mousavipour Francisco Gutierrez Via, Executive Director Executive Director Public Works Agency Finance & Management Services Agency Kelly Reenders Executive Director Community Development Agency Ia8FIVILLN�kyi[�7 Exhibits: 1. Location Map 2. Construction Contract 3. Cost Analysis 23A -3 23A -4 J y �� 17TH ST — —""' —" PROJECT AREA SANTA ANA CfTY COUNCIL p_w( AGENDA DATE o euc ro s .cc+c FEB 2, 20'16 r PROJECT 16 -7523 WASHINGTON SOUARE RESIDENTIAL STREET REPAIR VICINITY MAP 23A -5 L PAGE 1 OF 1 23A -6 CITY OF SANTA ANA 121E -BID CONSTRUCTION CONTRACT AGREEMENT EXHIBIT 2 PROJECT NO. 16 -7523 WASHINGTON SQUARE RESIDENTIAL STREET REPAIR This CONSTRUCTION CONTRACT is made and entered into this 2 "d day of February, 2015, by and between the CITY OF SANTA ANA, CALIFORNIA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, hereinafter referred to as "CITY" and EBS General Engineering Inc., hereinafter referred to as "CONTRACTOR ". WITNESSETH. The CITY and the CONTRACTOR, for the consideration hereinafter named, mutually agree as follows: 1. CONTRACTOR agrees to perform all the work and furnish all the materials at its own cost and expense necessary to construct and complete in a good and workmanlike manner and to the satisfaction of the City Engineer of the CITY, the Local Street Slurry Seal 2014 -15 Project, hereinafter referred to as the "Work of Improvement ", identified in and in accordance with the Contract Documents prepared by the City's Public Works Agency and approved by the City Council. 2. The complete Construction Contract consists of the "Contract Documents," as defined by the Standard Specifications for Public Works Construction and which include the following: • Notice Inviting Bids • Information to Bidders • Bid Proposal • Bid Bond . • Contract Form • Contract Bonds • General Provisions • Special Provisions • Project Plans • Appendices In case of conflict between the Contract Documents, the precedence of documents shall be as established in the Standard Specifications for Public Works Construction. 3. CITY agrees to pay and CONTRACTOR agrees to accept in full payment to complete the Work of Improvement the sum total amount not to exceed $984,925.00, as set forth and identified in the BID PROPOSAL, which is attached hereto and incorporated herein as Exhibit "A ". The BID PROPOSAL contains a schedule of unit price(s) or lump sum(s) based on approximate quantities only, and the City does not expressly or by implication agree that the actual amount of work will correspond therewith, but reserves the right to increase or decrease the amount of any class or portion of the work or to omit portions of the work as may be deemed necessary or advisable. 21A-7 CITY OF SANTA ANA RE -BID CONSTRUCTION CONTRACT AGREEMENT PROJECT NO. 16 -7523 WASHINGTON SQUARE RESIDENTIAL STREET REPAIR 4. CONTRACTOR agrees to complete the Work of Improvement within the time specified in the Time for Completion of Improvements section of the BID PROPOSAL (Exhibit "A ") including commencing construction within the timeframe therein specified after issuance of a Notice to Proceed. 5. The CONTRACTOR will pay, and will require all subcontractors to pay, all employees on the Work of Improvement a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations for this work in accordance with applicable State and Federal law. 6, CONTRACTOR shall, after award of this Contract, furnish two bonds to be approved by the CITY, one in the amount of One Hundred Percent (100 %) of the Contract price, to guarantee the faithful performance of the work (Performance Bond), and one in the amount of One Hundred Percent (100 %) of the Contract price to guarantee payment of all claims for labor and materials furnished (Payment Bond). This Contract shall not become effective until such bonds are supplied to and approved by the CITY. CONTRACTOR shall, prior to the release of the performance and payment bonds or the retention payment, famish a warranty performance and payment bond equal to at least ten (10 %) percent of the final Contract price or $1,000, whichever is greater (Warranty Bond). %I CONTRACTOR shall, upon project completion as a condition of project acceptance, furnish a Warranty Payment and Performance bond to be approved by the CITY, in the amount of Twenty -Five Percent (25 %) of the Contract price, to warrant the work done under said Contract Agreement against material or quality defects for a period of one year after acceptance by the AGENCY. CONTRACTOR shall, after award of this Contract, furnish Certificates of Liability Insurance and Worker's Compensation Insurance as outlined in the General Provisions, to be approved by the CITY. // 23�A 38 CITY OF SANTA ANA RE -BID CONSTRUCTION CONTRACT AGREEMENT PROJECT NO. 16 -7523 WASHINGTON SQUARE RESIDENTIAL STREET REPAIR IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract on the day and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Aftorne BY P sSandoval Assistant City Attorney F#-2 % CITY OF SANTA ANA: DAVID CAVAZOS City Manager RECOMMENDED FOR APPROVAL: Fred Mousavipour Executive Director, Public Works Agency CONTRACTOR: By:_ Title: CITY OF SANTA ANA RE -BID PROPOSAL PROJECT NO. 16 -7523 WASHINGTON SQUARE RESIDENTIAL STREET REPAIR. BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: EBS GENERAL ENGINEERING INC REQUIREMENT: The undersigned bidder declares that they have carefully examined the location of the proposed work, that they have examined the Contract Documents in its entirety and hereby proposes to furnish all material and do all the work required to complete the said work in accordance with said plans (if any) and the specifications for the unit price(s) or lump sum(s) set forth in the following schedule; Itent Description Unit Qty Unit Price Amount 1 Mobilization (Not to Exceed 10 %of Total Contract) LS 1 $ y/ $ $$ 2 Unclassified Excavation* Cy 500 �7 3 AC Pavement *F' TN 120 - $�2� /�,y, ' C✓t 4 Aggregate base* TN 960 5 Removal of 6" PCC at Various Locations* Cy 1,200 $ 6 Construct 6" PCC with (3 -day) Cure `�'oa including Dowels* Cy 1,100 $. 10,a) $(23) o6 7 Crack Seal with DeerySuper Gray* LF 43,000 s 8 Construct PCC Curb Ramp* SF 6,800 $ 9 Construct PCC Driveway Approach (T =6 ") * SF 4,500 $ 10 Construct PCC Curb (B -1) * LF 300 $ 11 Construct PCC Curb and Gutter(A -2 -6) * LF 1,800 $ . �) 0() $ b pw. 12 Construct PCC Cross Gutter* SF 7,900 $ , 13 Construct PCC Sidewall<* SF 5,000 / f 14 1 Grind PCC * LF 600 $< $ P -1 of P-25 23A -10 CITY OF SANTA ANA RF -BID PROPOSAL PROJECT NO, 16 -7523 WASHINGTON SQUARE RESIDENTIAL STREET REPAIR Item Description Unit Qty 17nitRrice Amount 15 Root Shave* EA 80 $ �, 0.1 U $ 00 , 16 Adjust Sewer Manhole Frame and Cover to Finished Grade* EA 20 17 Furnish and Install Water Valve Frame and Cover to Grade* EA 20 $ 5 W 1 $ f 18 Signing and Striping LS 1 $ Q„ , eCli $li(aclb 19 Temporary Construction Sign EA 2 $� ( $< W 20 SWPPP LS 1 $ " Sl.r ib a it $ TOTAL BASE BID $ Stl The lowest responsible bidder shall be selected based on the total base bid. The City reserves the right to award the Base Bid, and any, ail, or none of the add - alternate bid items (if any). The quantity for this bid item is shown for bid comparison only, This bid item shall not be subject to the "25 %" limit as stated in Section 3 -2 of the Standard Specifications. The actual amount for this item will be dictated by the actual quantity used, and the Agency reserves the right to increase or decrease the quantity of this item accordingly, TIME FOR COMPLETION OF IMPROVEMENTS AND LIQUIDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within forty (50) working days after the commencement date stated in the Notice to Proceed. The bidder also proposes to continue in a diligent and workman -like manner without interruption, and to complete the construction thereof within the time specified above. The liquidated damages amount, in lieu of the amount specified in Subsection 6 -9 of the Standard Specifications, shall be $1,500 per calendar day. Name of Firm EBS GENERAL ENGINEERING INC Signature of BIDDER Title JOSEPH A NANCI, PUSIDENT (If an individual, so state, If a firm or co- partnership, state the firm name and give the names of all individual co- partners composing the firm. If a corporation, state legal name of corporation, and manes of President, Secretary, Treasurer and Manager, thereof.) P -2 of P -25 23A -11 0 California All-Purpose Acknowledgement State of California } County of Oazlge On before me, William E. Ellis, Jr . a Notary Public personally Joseph A. Nanci WILLIAM E, C1.1.18 JM Commission # 2197998 a' Notary I .b111 - .."I U11114 orange County " My Comm. FAj1rQ6 Out23.201 Notary Public Seal Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other than Named Above: Capacity(ies) Claimed by Signer(s) Q Individual Q Corporate Officer: Q Partner - Q Limited U General Q Attorney -in -Fact Q Trustee Q Guardian or Conservator Q Other: Signer is Representing: who proved to me on the basis of satisfactory evidence to be the personN) whose nameXis/are subscribed to the within instrument and acknowledged to me that be/ shek -hey executed the same in his/h=*hete authorized capacity(Yms), and that by his/herttheir signatureK on the instrument the personi.`s), or the entity upon behalf of which the persouN acted, executed the instrument, I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct, WITNESS my hand and official seal. Notary Public Signature of Pages: 23A -12 OPTIONAL Q Individual Q Corporate Officer: Q Partner - Q Limited 0 General Q Attorney -in -Fact ❑ Trustee Q Guardian or Conservator Q Other: Signer is Representing: eW �' M•�?riWr n (a5rclar�l.xk� ¢Mr5 �xiN r.S �..,. ,5'gyaffi+`�rz�gN'4kr�rw. w.s+X�.n.M hxPon� °N'a'ie'..> -`, 23A -13 CITY OF SANTA ANA RE -BID PROPOSAL PROTECT NO. 16 -7523 WASHINGTON SQUARE RESIDENTIAL STREET REPAIR BIDDER'S STATEMENT BIDDER understands and agrees that this Bid Proposal, Contract Documents and subsequent Construction Contract Agreement shall constitute the entire agreement between BIDDER and the AGENCY only alter it has been accepted by the City Council, endorsed by the Clerk of the Council with her signature and official seal noting hereon the action of approval of the Council, signed by the Public Works Agency Executive Director or his /her duly authorized agent, and signed by the City Attorney, denoting his approval of the form of this document, and its execution, and when it or an exact copy of it has been either delivered to BIDDER or deposited with the United States Postal Service properly addressed to the BIDDER with the correct postage affixed thereto. BIDDER further agrees that upon delivery (as defined above) of the accepted agreement he /she will furnish AGENCY all required bonds and certificate of liability insurance within ten (10) business days or the funds, check, draft, or BIDDERS bond substituted in lieu thereof accompanying this proposal shall become the property of the AGENCY and shall be considered as payment of damages due to the delay and other causes suffered by AGENCY because of the failure to furnish the necessary bonds and because it is distinctly agreed that the proof of damages actually suffered is difficult to ascertain; otherwise said funds, check, drafts, or BIDDER'S bond substituted in lieu thereof shall be returned to the undersigned. BIDDER understands that a bid is required for the entire work, the estimated quantities set forth in the bid schedule are solely for the purpose of comparing bids, and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. The BIDDER also certifies that the bid is a balanced bid. In accordance with Section 7028.15 of the California Business and Professions Code, the undersigned certifies under penalty of perjury that the foregoing is true and correct. Name of Firm EBS GENEML ENGINEERING INC Signature of BIDDER Title JOSEPH A NANCI, Fp4:�8SIDENT (If an individual, so state. If r(firm or co- partnership, state the firm name and give the names of all individual co- partners composing the firm. If a corporation, state legal name of corporation, and names of President, Secretary, Treasurer and Manager, thereof) P -3 of P -25 23A -14 California All - Purpose Acknowledgement State of California ) County ofancre On ` "4� a before me, William E. Ellis, Jr, a Notary Public personally JDaenh A. Nanci WILLIAM E. ELLIS JR. Commission # 2927999 z r' Notary I'Alic • California Orange County My Comm. kx Irea 00123 2019 W Notary Public Seal Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other than Named Above: — Capacity(ies) Claimed by Signer(s) 0 Individual 0 Corporate Officer-: 0 Partner - 0 Limited 0 General 0 Attorney -in -Pact 0 Trustee 0 Guardian or Conservator 0 Other: Signer is Representing: who proved to me on the basis of satisfactory evidence to be the person(N) whose nameXis /awsubscribed to the within instrument and acknowledged to me that he/ she,Ahe3 executed the same in his /hcrft,eie authorized capacityoes,), and that by his /hrrftheir signatureNon the instrument the person,, or the entity upon behalf of which the personN acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. t Gfd L Notary Public Signature of Pages: 23A -15 OPTIONAL 0 Individual 0 Corporate Officer: 0 Partner - 0 Limited 0 General 0 Attorney -in -Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer is Representing: - ...,.. _..: "...rr..'. �•..,;,.:',.. ",..y- O.vN�Ai:fJ :.{'l(LVfr: %at7F`lM1r iY'�ry'r� "yR'M,R�"2`nyp.�, !:M %u:M^°W: 23A -16 i r � CITY OF SAN'T'A ANA RE -BID PROPOSAL PROJECT NO, 16 -7523 WASHINGTON SQUARE RESIDENTIAL STREET REPAIR CONT'RACTOR'S LICENSING AND REGISTRATION STATEMENT The undersigned contractor, or corporate officer, declares under penalty of perjury that he /she and all his /her subcontractors are registered with the State of California Department of Industrial Relations (DIR), and that the following is true and correct. Contractor's Name: EBS GENERAL ENGINEERING INC Business Address: 1320 E SIXTH ST, STE 100 CORONA CA 92879 Business E -Mail Address: BIDS @EBS- INC,US Telephone: 951 - 279 -6869 State Contractor's License No. and Class: 720016 A License Expiration Date: 3/31/16 State Dept. of Industrial Relations (DIR) Registration No.: State ;Dept. of Industrial Relations (DIR) Registration Expiration Date: Signed: Title: JOS7P),rA NANCI, PRESIDENT 1000005295 6/30/16 2J -z17 CITY OF SANTA ANA RE -BID PROPOSAL PROJECT NO, 16 -7523 WASHINGTON SQUARE RESIDENTIAL STREET REPAIR PREVAILING WAGE COMPLIANCE AND MONITORING STATEMENT Contractor is aware of the requirements of California Labor Code Section 1720, or seq„ as well as California Code of Regulations, Title 8, Section 16,000, et seq., ( "Prevailing Wage Laws "), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. Since the services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the services available to interested parties upon request, and shall post copies at the Contractor's principal place of business and at the project site. Contractor shall defend, indemnify and bold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws, The undersigned certifies that the foregoing is true and correct. Name of Firm EBS GENERAL ENGINEERING INC Signature of BIDDER Title JOSEPH A NANPI PRESIDENT (if an individual, so state) P -5 of P -25 23A -18 CITY OF SANTA ANA RE -BID PROPOSAL PROJECT NO. 16 -7523 WASHINGTON SQUARE RESIDENTIAL STREET REPAIR OWNERSHIP AFFIDAVIT STATE OF CALIFORNIA ) COUNTY OF ORANGE )SS: CITY OF SANTA ANA ) JOSEPH A NANCI , being duly sworn, deposes and says: ❑ INDIVIDUAL That he /she is the party making the foregoing proposal: © PARTNERSHIP That he /she is a member of the co- partnership firm designated as: and who has been and is duly vested with the authority to make and execute instruments for the co- partnership by: who constitute the other members of the co- parmership. CORPORATION That he is o£ EBS GENERAL ENGINEERING INC a corporation which is making the foregoing proposal: ❑ .JOINT VENTURE That he is of one of the parties malting the foregoing proposal as a joint venture, and the he /site has beetr and is duly vested with the authority to execute instruments for an on behalf of the parties making said bid who are: that such a bid is genuine and not collusive or sham, and has not in any manner sought by collusion to secure any advantage against the City of Santa Ana or any person interested in the pro pos contract, for himself or any other person. Signat e o. Bidder Subscribed and sworn to before me this 23 day of 12 2015 Signature of officer Administering Oath (Notary Public) P -6 of P -25 23A -19 California All - Purpose Acknowledgement State of California ) County of an e On l% 2 n`(" + before me, William E. Ellis Jr. ,a Notary Public personally Joseph A. Nanci WILLIAM E. ELLIS JR, Commission # 2127998 Notary public - California Orange County M t70mm. Ea Irea Oct 28, 2019+ Notary Public Seal Description of Attached Document Title or Type of Document: ?-4 l_ R - Document Signor(s) Other than Named Above: Capacity(ics) Claimed by Signer(s) Q Individual Q Corporate Officer: Q Partner - Q Limited Q General Q Attorney -in -Fact Q Trustee Q Guardian or Conservator Q Other: Signer is Representing: who proved to me on the basis of satisfactory evidence to be the personN) whose nameXis /ar6subscribed to the within instrument and acknowledged to me that he/ sheAhay executed the same in IrWh rftheir authorized capacity(tos), and that by bisthm* heir signatureK on the instrument the person(, or the entity upon behalf of which the personN acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public Signature of Pages: 5 23A -20 Oi' A TONAL Q Individual Q Corporate Officer: Q Partner - Q Limited Q General Q Attorney -in -Fact Q Trustee Q Guardian or Conservator Q Other: Signer is Representing; , ^:u Y 23A -21 CITY OF SANTA ANA RE -BID PROPOSAL PROJECT NO. 16 -7523 BOND# 3 -B WASHINGTON SQUARE RESIDENTIAL STREET REPAIR PREMIUM: NIT, BID BOND KNOW ALL PRESENT that, EBS GENERAL ENGINEERING, INC. as BIDDER, and SURETEC INSURANCE COMPANY as SURETY, are held and firmly bound unto the CITY OF SANTA ANA, as AGENCY, in the penal sum of- TEN PERCENT OF AMOUNT BID Dollars ($ 10 %_ ), which is ten percent (10 %) of the total amount bid by BIDDER to AGENCY for the above- stated project, for the payment of which sum, BIDDER and SURETY agree to be bound, jointly and severally, firmly by these presents. THE CONDITIONS OF THIS OBLIGATION ARE SUCH that, whereas BIDDER is about to submit a bid to AGENCY for the above - stated project, if said bid is rejected, or if said bid is accepted and a contract is awarded and entered into by BIDDER in the manner and time specified, then this obligation shall be null and void, otherwise it shall remain in full force and effect in favor of AGENCY. IN WITNESS WHEREOF the parties hereto have set their names, titles, hands, and seal this 17TH day of DECEMBER 12015. BIDDER* 20 E. SIXTH STREET, STE. 100, CORO PH: (95 BY: COMPANY / 3033 5TH AVE., STE, 300, SANDIEGO, CA WA CA 92879 279 -6869 -4100 CHARLES L. PLAKE,ATTORNEY -IN -FACT Subscribed and sworn to before me , 20_ Signature: Notary Public in and for the County of , State of this day of * Provide BIDDER/ SURETY name, address, and telephone number and the name, title, address, and telephone number of authorized representative. AGENT: CULBERTSON INSURANCE SERVICES, INC. 5500 E. SANTA ANA CANYON RD. #201 ANAHEIM, CA 92807 (714) 921 -0530 P -7 of P -25 23A -22 CALIFORNIA JURAT WITH AFFIANT STATEMENT GOVERNMENT CODE § 8202 . rcc, �l> GS'. zreS. tr, tC. cc. c' C-.C;: C) �. ccCCC. ccx: c, 6ccc -.cfctc:t`.rcrsc;rcArrcrxic; rrrcrcrc> cr, CCrcrcxdrercr .LrczC,t:S`.t:C,tresfs;".P.c I I See Attached Document (Notary to cross out lines 1-6 below) IN See Statement Below (Lines 1-6 to be completed only by document signer[s), not Notary) Signature of Document Signer No. 1 Signature of Document Signer No. 2 (if any) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ORANGE LEXIE SHERWOOD COMM. # 2031782 NOTARY PUBLIC +CALIFORNIA .�. 0 ' Tr ORANGE COUNTY > Comm. Exp. JULY 27, 2017 v-v-v Seal Place Notary Seal Above Subscribed and sworn to (or affirmed) before me on this 17TH day of DECEMBER 20 15 , by Date Month Year (1)__ CHARLES L. FLAKE (and (2)5�_ - = —_ Name(s) of Signers) proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me. Signature 6((Z ZZ Oi�� Signature of Notary Public OPTIONAL Though this section Is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Number of Pages: -- Signer(s) Other Than Named Above: Document Date: 02014 National Notary Association - www.NationalNotary.org - 1- 800 -US NOTARY (1 -800- 876 -6827) Item 65910 23A -23 Pon 4; SureTee Insurance Company )LIMITED POWER OF ATTORNEY Know All Men by These Presents, That SURETEC INSURANCE COMPANY (the "Company "), a corporation duly organized and existing under the laws of the State of Texas, and having its principal office in Houston, Harris County, Texas, does by these presents make, constitute and appoint Charles I. Flake, David L, Culbertson, Richard A. Coon, Spencer Flake its true and lawful Attomey -m -fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings or other instruments or contracts of suretyship to include waivers to the conditions of contracts and consents of surety for: Five Million and 00 /100 Dollars ($5,000,000.00) and to bind the Company thereby as fully and to the same extent as if such bond were signed by the President, sealed with the corporate seal of the Company mid duly attested by its Secretary, hereby ratifying and confirming all that the said Attomey -iu -Fact may do in the premises. Said appointment shall continue in force until - I oin IMIS and is made under and by authority of the following resolutions of the Board of Diroctors of the SureTec Insurance Company: Be it Resolved, that the President, any Vice- President, any Assistant Vice - President, any Secretary or any Assistant Secretary shall be and is hereby vested with full power and authority to appoint any occur more suitable persons as Attorney(s)-in-Fact to represent and act for and on behalf of the Company subject to the following previsions: Attorney -in -Fact may be given full power and authority for mid in the name of and of behalf of the Company, to execute, acknowledge and deliver, any and all bonds, recognizances, contracts, agreements or indemnity and other conditional or obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by nay such Attorney -in -Fact shall be binding upon the Company as if signed by the President and scaled acrd affected by the Corporate Secretary. Be it Resolved, that the signature of any authorized officer and seal of die Company heretofore or hereafter affixed to any power of attorney or any certificate relating thereto by facsimile, and my power of attorney or certificate braying facsimile aignaturo_or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is attached. (Adopted at a meeting held on 20s' afAteril, 1999.) In Witness Wilareof, SURETEC INSURANCE COMPANY has caused these presents to be signed by Its President, and its corporate seal to be hereto affixed this lath day of May AD, . 2015 SURETEC INSUIL4NCE COMPANY S�anNOw *Ni�, ., Byl Jo i in 1 _ John ox Jiresident State of Texas ss; � s'ya County of Harris �"^nwnuw %,n,a,we On this lath day of May A.D. 2015 before me personally atone John Knox Jr, to me known; who, being by use duly sworn, did depose and say, that he resides in Houston, Texas; that he is President of SURETEC INSURANCE COMPANY, the company described in and which executed the above instrument; that he knows the seal of said Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Beard of Directors of said Company; and that he signed his name thereto by like order, s a` a LIAGOUELIN otar MAblic O Notary Pu611a / $rate 91 Texas mm.exp.sltalzut7 Jacquelyn •Maldonado,NotaryPublic My commission expires May 18, 2017 1, M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a trice and correct copy of a Power of Attorney, executed by said Company, which is still in full force and effect; and furthermore, the resolutions of the Hoard of Directors, set out in the Power of Attorney are in full force and effect. Given under my hand and the seal of said Company at Ilauston, Texas this 1. 7TH day /tEmty f DECEMBER 201.5 _, A.D. PBje,A Any Instrument Issued in excess of the penalty stated above Is totally void and without any valldity. For verlflostlon of the authority of this power you may call (713) 812 -0800 any business day between 8A9 am and MU pm CST. California All-Purpose Acknowledgement State of California } County of - gangs_______ On -" 0°(4( beforeme, Pulliam E. Ellis Tr, m, a Notary Public Personally appeared_ Joseph A. Nanci +.o.wr WILLIAM E. ELLIS JR. Commission k 2127998 Z ' Notary public California Orange County a *wM Comm, x Tres Oct 28 2Ot9t who proved to me on the basis of satisfactory evidence to be the personN) whose nameXis /arfsubscribed to the within instrument and acknowledged to me that he/ °r'eAhID-Y executed the same in his/her/44teifi authorized capacity0BQ, and that by his/herftheir signaturex on the instrument the persouX or the entity upon behalf Of which the person acted, executed the instrument. I certify under PENALTY Op pERIURY under the laws of the State of California that the foregoing paragraph is true and correct, WITNESS my hand and official seal. J�� ��, Notary public Seal Notary Public Signature Description of Attached Document Title or Type of Document: Document Signer(s) Other than Named Above: CapacitAies) Claimed by Signer(s) CI Individual Ci Corporate Officer: CI Partner - 0 Limited D General ❑ Attorncy -in -Pact Ci Trustee C) Guardian or Conservator D Other: Signer is Representing; of Pages: 23A -25 OPTIONAL C7 Individual 0 Corporate Officer: _ El Partner - O Limited ❑ General ❑ Attorney -in -Pact Cl Trustee ❑ Guardian or Conservator CI Other: Signer is Representing: :0✓�z�%AY^r^ +^��:�ykM' n wa iw�. 9.,un�wwvr...n..,, 23A -26 COST ANALYSIS PROJECT NO. 16 -7523: Washington Square Residential Street Repair FY 15 -16 Construction Contract $ 984,925.00 Contract Administration $ 51,582.00 Inspection and Testing $ 73,362.00 Survey $ 22,795.00 Contingencies $ 98,493.00 TOTAL ESTIMATED CONSTRUCTION COSTS $ 1,231,157.00 EXHIBIT 3 23A -27 23A -28 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: AGREEMENTS FOR INFORMATION TECHNOLOGY CONTRACT SERVICES {STRATEGIC PLAN NO. 7, 2D} CITY MANAGE RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: -9 T_J_.T*7J E o ❑ As Recommended ❑ As Amended ❑ Ordinance on 1't Reading ❑ Ordinance on 2M Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO I�I��gllldils7�7 1. Authorize the City Manager and Clerk of the Council to approve and execute agreement with The Comdyn Group, Inc. for a six -month period, beginning March 1, 2016 through August 31 2016; along with a six -month extension exercisable on a month to month basis for the period September 1, 2016 through February 28, 2017 upon approval by both the City Manager and City Attorney for a total amount of $1,560,000; subject to non - substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and Clerk of the Council to approve and execute agreement with Softmaster, Inc. for a six -month period, beginning March 1, 2016 through August 31 2016; along with a six -month extension exercisable on a month to month basis for the period September 1, 2016 through February 28, 2017 upon approval by both the City Manager and City Attorney for a total amount of $2,040,000; subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The City's Information Services Division is responsible for providing and maintaining technology infrastructure and solutions that the City requires in delivering services to the public and its constituents. The Division provides network, applications, micro -tech support, website, and telecommunications services. The City uses a hybrid staffing model of employees and contractors. Utilizing contractors provides the benefit of scaling resources to the needs of the organization without bearing the financial commitment required by permanent employment. On September 1, 2015, the City Council authorized renewal of the IT consulting services for six months. At that time, the City had recently completed an IT assessment that resulted in the development of an IT Strategic Plan Roadmap. The recommendations included hiring a Chief Technology Innovations Officer (CTIO) and reorganizing the City's IT functions. 25A -1 Agreement for Information Technology Contract Services February 2, 2016 Page 2 The recruitment of the Chief Technology Innovations Officer (CTIO) commenced during the first quarter of fiscal year 2015 -16. As a result, the new executive is projected to join the City by the end of March 2016. One of the initial tasks for the CTIO will be to review the City's current IT resources, provide recommendations on staffing levels, and implement a reorganization that aligns resources with the needs of the organization and recommended IT Strategic Plan initiatives. Staff recommends renewing the information technology services agreements to prevent disruption of the City's current IT systems and related programs; along with the ability for the CTIO to make further recommendations and analyze the future needs of the IT Department. The Information Services function is currently comprised of 19 full -time positions and 18 contract and part-time staff. The contract staff is essential to the operations and support of the City's information systems and provides the necessary resources to support project initiatives aligned with the City and Information Technology Strategic Plans. Infrastructure and systems that IT contractors maintain and support include Data Centers at City Hall, the Police Department with over 200 servers, local and wide area networks with connectivity to 39 City locations, WiFi, Internet connectivity, website, email, and other essential services. Contractors support the environment used by public safety systems including the Santa Ana Police Department Computer Aided Dispatch (CAD), Jail Management, Arrest and Booking, Case and Records Management, patrol vehicle communication, California Law Enforcement Telecommunication System (CLETS) connectivity, evidence, PD and Emergency Operations Centers, Mobile Command Post, Crime Analysis, and many others. Existing IT contract staff also maintain, support, develop, and implement mission - critical applications including Payroll and Human Resources, Municipal Utility Billing and Customer Service, Business License Tax, Hotel Visitors Tax, Utility Users Tax, Dog License, Cashiering, Property Information (SAPIN), Enterprise Content Management, and others. The agreements for The Comdyn Group, Inc. (Comdyn) in the amount of $1,560,000 and Softmaster, Inc. (Softmaster) in the amount of $2,040,000 total $3,600,000. Staff will ensure the combined expenditures incurred for both agreements, Comdyn and Softmaster, will not exceed the authorized amount of $3,000,000 as noted in the fiscal impact section below. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #7- Team Santa Ana, Objective #2 (establish communication plans to engage and inform employees and the community about City activities), Strategy D (invest in software /resources that will help streamline the flow of information to City staff and the public). 25A -2 Agreement for Information Technology Contract Services February 2, 2016 Page 3 FISCAL IMPACT Funds are available in the Finance - Communications, and various Information Services Strategic Plan, Contractual Services accounts in FY 2015 -2016 in the amount of $1,000,000 and will be budgeted and available in FY 2016 -17 in the amount of $2,000,000 as follows: Fiscal Year 2015 -16 (3/1/16- 6/30/16) Account: Amount: 1091014162300 $7,000 10910142 62300 $23,100 10910143 62300 $100,000 10910144 62300 $100,000 10910145 62300 $26,400 10910147 62300 $743,500 Total FY 2015 -16: $1,000,000 Fiscal Year 2016 -17 7/1/16 - 2/28/17) Account: Amount: 1091014162300 $14,000 10910142 62300 $46,200 10910143 62300 $200,000 10910144 62300 $200,000 10910145 62300 $52,800 10910147 62300 $1,487,000 Total FY 2016 -17: $2,000,000 Contract Total: $3,000,000 APPROVED AS TO FUNDS AND ACCOUNTS: q, Francisco Gutierrez S Executive Director Finance and Management Services Agency MR Exhibit: 1. Comdyn Group Inc. Agreement 2. SoftMaster, Inc. Agreement 25A -3 25A -4 CONSULTANT AGREEMENT FOR INFORMATION TECHNOLOGY PERSONNEL SERVICES THIS AGREEMENT, is made and entered into this 2n6 day of February, 2016 by and between The Comdyn Group, a California corporation ( "Consultant "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS A. The City desires to retain a consultant having special skill acid knowledge in the field of providing temporary technical contract service personnel and consulting services. B. Consultant has previously provided temporary technical contract services with the City and the City desires to continue these services with Consultant. C. Consultant represents that Consultant is able and willing to provide such services to the City. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall provide temporary technical contract service personnel as more folly described in Exhibits A and B, and as requested at the sole discretion of the City. 2. DELIVERY OF WORK PRODUCT Any person providing services pursuanta to this Agreement shall deliver to City any work product which results from the services provided pursuant to this Agreement. In regard to all copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, photographs, drawings, films, recordings, videotapes, and computer programs, Consultant agrees for itself and, its affected officers, employees, agents, contractors, and volunteer workers that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, will 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 to disclose, publish, translate, reproduce, and use such materials. Exhibit I Page 1 of 25A -5 3. COMPENSATION a. The City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. The total sun to be expended under this Agreement shall not exceed One Million Five Hundred Sixty Thousand Dollars ($1,560,000,00) during the term of this Agreement. Reimbursement for any services - related expense incurred by Consultant or contract personnel shall be subject to advance approval by City and payable by City in accordance with Section 3.b. b. Payment by City shah be made within forty -five (45) days following receipt of proper Invoice evidencing work performed, subject to the City's accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by the City. 4. TERM This Agreement shall commence on March 1, 2016 and end on August 31, 2016, unless terminated earlier in accordance with Section 13, below, The term of this Agreement may be extended on a month -to -month basis for up to six (6) months upon a writing executed by the City Manager and the City Attorney. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a tnatmer 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 announts 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 Page 2 of 7 25A -6 amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insured provisions. b. Worker's Compensation Insurance. In accordance with California State law, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self- insurance, Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident, c. 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. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City. (ii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. d. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to and shall indemnify, defend and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; 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, to the extent that the injury, damages, just compensation, restitution, judicial or equitable relief is caused by the negligence of the Consultant. 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 Page 3 of 7 25A -7 Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. In no case will Consultant be required to indemnify or hold harmless the City from injury, damages, just compensation, restitution, judicial or equitable relief caused by the negligence of the City. 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 Infonnation" 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 rightfid 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 Linder 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 comniunication in the manner provided in this Section, to the following persons: To City Clark of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax (714) 647 -6956 With courtesy copies to: Finance and Management Services City of Santa Ana Page 4 of 7 25A -8 �I 20 Civic Center Plaza (M -17) P.O, Box 1988 Santa Ana, California 92702 Fax (714) 647 -5406 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O, Box 1988 Santa Ana, California 92702 Fax (714) 647 -6515 To Consultant: The Comdyn Group 17900 Sky Park Circle Irvine, CA 92614 (949) 852 -0442 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 now address. If sent by mail, communioation shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, drily registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, comnnnlication 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 regarding the subject matter herein, 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 Page 5 of 7 25A -9 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 persommel or by other consultants retained by City. 13. TERMINATION This Agreement maybe terminated by the City with thirty (30) days written notice to the Consultant, 14. NON - DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Contractor affirms that it is an equal opportunity ennployer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION -VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed 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, 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, continuing education, 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 p<vaties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if frilly set forth in the body of this Agreement. Page 6 of 7 25A -10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR DAVID CAVAZOS Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By LL HN M. FUNK Assistant City Attorney RECOMMENDED FOR APPROVAL: CONSULTANT The Comdyn Group FRANCISCO GUTIERREZ By: Executive Director Title: Finance & Management Services Agency Page 7 of 7 25A -11 EXHIBIT A CITY OF SANTA ANA Information Technology Contractor Position /Title Descriptions including Pay Rate Ranges based on Contractor and Industry /Regional Rates February 2016 Position /Title Description Hourly Rate (all inclusive) Datacenter Engineer Ensures stability, integrity, and efficiency of the $70 -$93 operations of in -house Information systems located within the datacenter. Executes the planning, design, implementation, and support of complex infrastructure related equipment, racks, uninterrupted power supply, and upgrades. Includes other duties as assigned. IT Project Manager Keeps project on course for schedule, cost and $100 -$110 resources. Assists In planning, organizing, and arranging for staffing. Heads effort to confirm user requirements. Coordinates selection phase (e.g. RFP, proposal evaluation, vendor selection, negotiations, internal approvals and contracts); assists in in vendor management, leads data migration, helps develop business rules; oversees acceptance testing and operational cut over. Some post implementation transition assistance and other duties as assigned. Network Analyst Provides Installation, layout, and maintenance of $80 -$98 network components. Involved in both the business side and technical side to help identify problems within the organization and suitable technical solution and other duties as assigned. Principal Programmer Perform design, development, and production support $80 -$115 for various applications. Will code, Integrate, and test programs within a pre - defined standard methodology. Provide support and implement enhancements for existing production systems, etc. and other duties as assigned. Programmer Will code, integrate, and test programs within a pre- $70 -$95 defined standard methodology. Provide support and implement enhancements for existing production systems, etc. and other duties as assigned. Senior Network Engineer Responsible for configuring, controlling, tuning, $70 -$93 monitoring and troubleshooting all elements of the LAN /WAN infrastructure including switches, routers, firewalls, virtual private networking and leased circuits and other Issues of complexity and duties as assigned. Senior Programmer Analyst Work as a member of a software project team on $90 -$105 client /server and web applications using various technologies and tools. Perform design, development, and production support for various applications. Will code, integrate, and test programs within a pre- defined standard methodology. Provide support and implement enhancements for existing production systems, etc. and other duties as assigned. Senior Systems Engineer Responsible for computer and storage systems design, $70 -$93 configuration, and operations. Provides design, implementation, troubleshooting, maintenance and analysis of Internal and external computing environments. Identifles, researches, and resolves 25A -12 EXHIBIT A CITY OF SANTA ANA Information Technology Contractor Position /Title Descriptions including Pay Rate Ranges based on Contractor and Industry /Regional Rates February 2016 25A -13 complex technical problems. Performs a variety of complicated tasks, and provides support for escalated troubled tickets. Has broader responsibilities than datacenter engineer, though may have other duties as assigned, Systems Administrator Administration of systems and user accounts and $40 -$85 management; install, upgrade, and monitor network and server software and hardware. Involved In maintenance, configuration, and reliable operation of servers and other infrastructure equipment such as wireless devices, switches, and cabling. Ensures up -time, performance, and security of the servers and network. Performs back -up of systems, data discovery, and creation of user accounts. Includes other duties as assigned. Systems Support Analyst (Mid to Sr.) Provides design, implementation, troubleshooting, $65 -$100 maintenance and analysis of internal and external computing environments. Identifies, researches, and resolves complex technical problems. Performs a variety of complicated tasks, and provides support for escalated troubled tickets. May have other duties as assigned. Web Architect Manages system architecture, software development, IT $90 -$115 infrastructure, and technical evaluation for project and programs. Coordinates Implementation of the infrastructure components, uses software technology and techniques, may write and develop software for special projects; designs Infrastructure to support enterprise and user requirements. Provides conceptual, analytical and design for meeting business objectives. Includes other duties as assigned. 25A -13 EXHIBIT B CITY OF SANTA ANA IT Contractor Negotiated Hourly Rates February 2016 Negotiated Hourly IT Contractor Position Title Billing Rate (all inclusive) Conulyn Sr. Network Engineer i Project Manager Systems Administrator e- Sr. Systems Engineer Network Analyst 25A -14 see range in Exhibit A see range in Exhibit A see range in Exhibit A see range in Exhibit A' see range in Exhibit A'. CONSULTANT AGREEMENT FOR INFORMATION TECHNOLOGY PERSONNEL SERVICES THIS AGREEMENT, is made and entered into this 2nd day of February, 2016 by and between Sofhnaster, Inc., a California corporation ("Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "), RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of providing temporary technical contract service personnel and consulting services. B. Consultant has previously provided temporary technical contract services with the City and the City desires to continue these services with Consultant. C. Consultant represents that Consultant is able and willing to provide such services to the City. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terns and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall provide temporary technical contract service personnel as more fully described in Exhibits A and B, and as requested at the sole discretion of the City. 2. DELIVERY OF WORD PRODUCT Any person providing services pursuant to this Agreement shall deliver to City any work product which results from the services provided pursuant to this Agreement. In regard to all copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, photographs, drawings, films, recordings, videotapes, and computer programs, Consultant agrees for itself and its affected officers, employees, agents, contractors, and volunteer workers that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, will 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 -flee, nonexclusive irrevocable license throughout the world to disclose, publish, translate, reproduce, and use such materials. Exhibit 2 Pago 1 of 7 25A -15 3. COMPENSATION a. The City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified, in Exhibit B. The total-sum to be expended under this Agreement shall not exceed Two Million Forty Thousand Dollars ($2,040,000,00) during the tern of this Agreement. Reimbursement for any services - related expense incurred by Consultant or contract personnel shall be subject to advance approval by City and payable by City in accordance with Section 3.b. b. Payment by City shall be made within forty -five (45) days following receipt of proper invoice evidencing work performed, subject to the City's accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by the City. 4. TERM This Agreement shall commence on March 1, 2016 and end on August 31, 2016, unless terminated earlier in accordance with Section 13, below. The term of this Agreement may be extended on a month -to -month basis for up to six (6) months upon a writing executed by the City Manager and the City Attorney. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking perfornance 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 arnounts 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 Page 2 of 7 25A -16 amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insured provisions.- b. Worker's Compensation Insurance. In accordance with California State law, 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 render this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City. (ii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect withouut thirty (30) days prior written notice to the City. d. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. INDEMNIFICATION Consultant agrees to and shall indemnify, defend and hold hamnless the City, its officers, agents, employees, consultants, special counsel, acid 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 negligent operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terns of or effects arising from this Agreement, to the extent that the injury, damages, just compensation, restitution, judicial or equitable relief is caused by the negligence of the Consultant. 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 terns of, or effects, arising from this Page 3 of 7 25A -17 Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. In no case will Consultant be required to indemnify or hold harmless the City from injiny, damages, just compensation, restitution, judicial or equitable relief caused by the negligence of the City: 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 infonnation 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; (e) 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 ruder 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 (1\4-30) P.O. Box 1988 Santa Ana, CA 92702 -1958 Fax (714) 647 -6956 With courtesy copies to: Finance and Management Services City of Santa Ana Page 4 of 7 25A -18 20 Civic Center Plaza (M -17) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 647 -5406 and City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 647 -6515 To Consultant: Softmaster, Inc. 23 Peters Canyon Irvine, CA 92606 (949) 598 -4599 (Fax) A party may change its address by giving notice in writing to the other party. Thereafter, any commumication 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 regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terns of this Agreement and any attachmorits hereto, die 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 terns or conditions of any purchase order or other instrument that arc) 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 will and void. Nothing in this Agreement Page S of 7 25A -19 shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement perfonned by City personnel or by other consultants retained by City. 13. TERMINATION This Agreenrent may be terminated by the City with thirty (30) days written notice to the Consultant, 14. NON - DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital stahns, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Contractor 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 and all questions relating to its validity, interpretation, performance, and enforcement shall be governed 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. 16. PROFESSIONAL LICENSES Consultant shall, throughout the tern of this Agreement, maintain all necessary licenses, permits, approvals, waivers, continuing education, 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 teens of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b, All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. Page 6 of 7 25A -20 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written., ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: HN M. F'UN1C ssistaut City Attorney RECOMMENDED FOR APPROVAL: CITY OF SANTA ANA DAVID CAVAZOS City Manager CONSULTANT Softmaster, Inc. FRANCISCO GUTIERREZ By: Executive Director Title: Finance & Management Services Agency Page 7 of 7 25A -21 EXHIBIT A CITY OF SANTA ANA Information Technology Contractor Position /Title Descriptions including Pay Rate Ranges based on Contractor and Industry /Regional Rates February 2016 Position /Title Description Hourly Rate (all inclusive) Datacenter Engineer Ensures stability, integrity, and efficiency of the $70 -$93 operations of In -house Information systems located within the datacenter. Executes the planning, design, Implementation, and support of complex infrastructure related equipment, racks, uninterrupted power supply, and upgrades. Includes other duties as assigned. IT Project Manager Keeps project on course for schedule, cost and $100 -$110 resources. Assists in planning, organizing, and arranging for staffing. Heads effort to confirm user requirements. Coordinates selection phase (e.g. RFP, proposal evaluation, vendor selection, negotiations, internal approvals and contracts); assists in In vendor management, leads data migration, helps develop business rules; oversees acceptance testing and operational cut over. Same post Implementation transition assistance and other duties as assigned. Network Analyst Provides installation, layout, and maintenance of $80 -$98 network components. Involved in both the business side and technical side to help identify problems within the organization and suitable technical solution and other duties as assigned. Principal Programmer Perform design, development, and production support $80 -$115 for various applications. Will code, integrate, and test programs within a pre - defined standard methodology. Provide support and implement enhancements for existing production systems, etc, and other duties as assigned. Programmer WIII code, integrate, and test programs within a pre- $70 -$95 defined standard methodology, Provide support and Implement enhancements for existing production systems, etc. and other duties as assigned. Senior Network Engineer Responsible for configuring, controlling, tuning, $70 -$93 monitoring and troubleshooting all elements of the LAN /WAN infrastructure including switches, routers, firewalls, virtual private networking and leased circuits and other issues of complexity and duties as assigned. Senior Programmer Analyst Work as a member of a software project team on $90 -$105 client /server and web applications using various technologies and tools. Perform design, development, and production support for various applications. Will code, integrate, and test programs within a pre - defined standard methodology. Provide support and Implement enhancements for existing production systems, etc. and other duties as assigned. Senior Systems Engineer Responsible for computer and storage systems design, $70 -$93 configuration, and operations. Provides design, implementation, troubleshooting, maintenance and analysis of internal and external computing environments. Identifies, researches, and resolves 25A -22 EXHIBIT A CITY OF SANTA ANA Information Technology Contractor Position /Title Descriptions including Pay Rate Ranges based on Contractor and Industry /Regional Rates February 2016 25A -23 complex technical problems. Performs a variety of complicated tasks, and provides support for escalated troubled tickets. Has broader responsibilities than datacenter engineer, though may have other duties as assigned. Systems Administrator Administration of systems and user accounts and $40 -$85 management; install, upgrade, and monitor network and server software and hardware. Involved In maintenance, configuration, and reliable operation of servers and other infrastructure equipment such as wireless devices, switches, and cabling. Ensures up -time, performance, and security of the servers and network. Performs back -up of systems, data discovery, and creation of user accounts. Includes other duties as assigned. Systems Support Analyst (Mid to sr.) Provides design, implementation, troubleshooting, $65 -$100 maintenance and analysis of internal and external computing environments. Identifies, researches, and resolves complex technical problems. Performs a variety of complicated tasks, and provides support for escalated troubled tickets. May have other duties as assigned. Web Architect Manages system architecture, software development, IT $90 -$115 Infrastructure, and technical evaluation for project and programs. Coordinates Implementation of the Infrastructure components, uses software technology and techniques, may write and develop software for special projects; designs infrastructure to support enterprise and user requirements. Provides conceptual, analytical and design for meeting business objectives. Includes other duties as assigned. 25A -23 EXHIBIT B CITY OF SANTA ANA IT Contractor Negotiated Hourly Rates .Februnly 2016 Negotiated Hourly IT Contractor Position Title Billing Rate (all inclusive) SoftMaster Project Manager see range in Exhibit A Sr. Programmer Analyst I see range in Exhibit A Sr. Systems Support Analyst see range in Exhibit A Principal Programmer see range in Exhibit A Systems Administrator see range in Exhibit A Programmer see range in Exhibit A Web Architect - - -- ! see range in Exhibit A Datacenter Engineer see range in Exhibit A 25A -24 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: COMMUNITY DEVELOPMENT BLOCK GRANT AND INCLUSIONARY HOUSING FUNDS LOAN AGREEMENT — SANTA ANA ARTS COLLECTIVE, LP (STRATEGIC PLAN NO. 5, 3A, 3C) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended Cl As Amended ❑ Ordinance on I" Reading © Ordinance on 2nd Reading E Implementing Resolution E Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute a single loan agreement with Santa Ana Arts Collective, LP for $500,000 in Community Development Block Grant funds and $1,875,000 in Inclusionary Housing Funds for a total combined amount not to exceed $2,375,000 to create 57 units of affordable housing at 1666 N. Main Street; subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION On June 1, 2015, City staff issued a Request for Proposals (RFP) soliciting applications for the development of an affordable housing project. The RFP indicated that the City would consider proposals for new construction and /or acquisition and rehabilitation projects. It also indicated that the City had approximately $1,875,000 in Inclusionary Housing funds; $500,000 in Community Development Block Grant (CDBG) funds; $830,000 in federal HOME Program funds to be committed by July 31, 2016; $1,430,000 in federal HOME Program funds to be committed by July 31, 2017; and 24 Project -Based Vouchers. On November 3, 2015, City Council approved the proposal award to Meta Housing Corporation (Developer) for the Santa Ana Arts Collective, located at 1666 N. Main Street (Exhibit 1). Staff is now requesting City Council to authorize the execution of the loan agreement for the CDBG Program funds and the Inclusionary Housing funds. Once the project receives Low - Income Housing Tax Credit financing, the HOME Loan Agreement will also require City Council approval. The proposed project, located at 1666 N. Main Street, will enhance the connectivity of the Artist Village in the downtown to the arts and cultural institutions on Main Street including the Bowers Museum, Kidseum, Discovery Cube, The Wooden Floor, Orange County School of the Arts, and others. The proposed project, named the Santa Ana Arts Collective, would adaptively reuse a late modern five -story office building and site, into a community gallery and affordable family 25B -1 Loan Agreement — CDBG and Inclusionary Housing Funds Santa Ana Arts Collective, LP February 2, 2016 Page 2 development designed for artists of all disciplines. The proposed project would promote the City's goal of providing long -term affordable housing and meeting the affordable housing goals as identified in the City's Strategic Plan, Housing Element and Consolidated Five Year Plan. The proposed project would offer a preference to applicants who are artists and working artist families within Santa Ana with a process that would meet Fair Housing and funding requirements. Although an artist population is preferred, this preference will not override the requirement for long -term financial success. The project includes a community art gallery, an art garden on the ground floor, a maker space, digital and media lab, music room, performing arts room, and activity programs. EngAGE, the project's service provider, will provide high - quality coordination services designed to improve the quality of life for tenants, including after - school tutoring, computer training, creativity programs, and other activities. EngAGE provides their services at no cost to the tenants and have the following goals for their programs: (1) create programs in partnerships with residents; (2) provide a minimum of two programs per month; and (3) achieve engagement of at least 40% of residents in at least one program /event per month. This proposed project will be one of the first projects under the City's new adaptive reuse ordinance, the first affordable housing complex with an artist preference, and the first project funded with Inclusionary Housing funds in the City. The Santa Ana Arts Collective received six letters of support from the local community and residents that included the Grand Central Art Center, Orange County School of the Arts, and Media Arts Santa Ana. The City's financial consultant, Keyser Marston Associates Inc. conducted a financial review of the proposed project based on its submission to the RFP and will be providing a detailed subsidy layering analysis once all other financing is in place in accordance with federal regulations. The proposed unit mix and rent restrictions are as follows: The total project cost to acquire, rehabilitate and provide the proposed level of affordability in the building is $26,558,333. The tables below summarize the proposed funding sources and anticipated costs of the project: 25B -2 30% AMI 50% AMI 60% AMI Unit Size No. Units Proposed Rent No. Units Proposed Rent No. Units Proposed Rent Total 1 Bedroom 2 $527 24 $878 - -- - -- 26 2 Bedroom 2 $633 - -- $1,055 12 - -- 14 3 Bedroom 2 $731 - -- - -- 15 $1,462 17 Total 6 24 27 57 The total project cost to acquire, rehabilitate and provide the proposed level of affordability in the building is $26,558,333. The tables below summarize the proposed funding sources and anticipated costs of the project: 25B -2 Loan Agreement — CDBG and Inclusionary Housing Funds Santa Ana Arts Collective, LP February 2, 2016 Page 3 Permanent Funding Sources Amount Permanent Loan $ 3,788,911 City of Santa Ana — HOME 2,260,000 City of Santa Ana — CDBG 500,000 City of Santa Ana — Inclusionary Housing Funds 1,875,000 HCD — Affordable Housing & Sustainable Communities (Cap & Trade Funds ) 3,500,000 Tax Credit Equity 14,213,448 Deferred Developer Fee 420,974 TOTAL: $ 26,558,333 Project Costs Amount Land Acquisition Costs $ 7,255,522 Construction Costs 10,917,565 Architectural & Engineering 830,000 Operating Reserve 219,682 Relocation 782,000 Additional Project Costs 4,553,564 Developer Fee 2,000,000 TOTAL: $ 26,558,333 The City's funding sources including HOME Program funds, CDBG Program funds, and Inclusionary Housing funds will be provided by means of 55 -year City loans carrying a three percent interest rate and payable by residual receipts. The loan agreement for the CDBG Program funds and Inclusionary Housing funds will be executed upon approval from City Council (Exhibit 2). ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempt from further review per Section 15194. This affordable housing exemption is applicable as the proposed project is on a site that is less than 5 acres in size; is within an urbanized area that has a density of at least 5,000 persons per square mile; is located on a site that has previously been developed for urban uses; consists of 100 or fewer units that are affordable to low income housing; and, the developer will provide sufficient legal commitments to ensure continued availability and use of the housing for lower income housing for at least 30 years. Categorical Exemption Environmental Review No. 2016 -06 will be filed for this project. STRATEGIC PLAN ALIGNMENT The activities covered by this report allow the City to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective # 3 (Facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods), Strategy A (Continue to explore options Citywide regarding the re -use of commercial or industrial buildings that are 25B -3 Loan Agreement — CDBG and Inclusionary Housing Funds Santa Ana Arts Collective, LP February 2, 2016 Page 4 currently underutilized or vacant for mixed -use residential projects), and Strategy C (Provide that Santa Ana residents, employees, artists and veterans receive priority for affordable housing created under the City's Housing Opportunity Ordinance or with City funding to the extent allowed under state law). FISCAL IMPACT The CDBG Program and Inclusionary Housing funds are projected to be spent in the following fiscal year as follows: Funding Source Grant Year Fiscal Year Account No. Amount CDBG Program 2015 2016 -2017 13518782 -69152 $500,000 Inclusionary Housing N/A 2016 -2017 41718820 -69152 $1,875,000 Kelly Reenders Executive Director Community Development Agency KR/JB /NV /II TOTAL: $2,375,000 APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez SA, Executive Director Finance and Management Services Agency Exhibits: 1. Location Map 2. Inclusionary Housing and CDBG Loan Agreement 25B -4 PROPOSED PROJECT LOCATION 1666 NORTH MAIN STREET FE SI NAL v s COMM RCIAL O COMMERCIAL 17TH COMME C I A L J Q Q v O w w J v Q U w O w O U 15TH I- w w cr H N W K 0 Q V } EXHIBIT 1 25B -5 STREET k cw J Q F- v O w — w v w w w O Vn N V 16TH STREET COMM. J U GG - w 2 Z � V v7 - Q O LL W w lJ7 w m N STREET � F k cw r FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M -26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager LOAN AGREEMENT by and between the CITY OF SANTA ANA, and SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] SANTA ANA ARTS COLLECTIVE, L.P. (1666 N. Main Street, Santa Ana, California) Dated: February 1 52991-t LOAN AGREEMENT INCLUSIONARY HOUSING PROGRAMICDBG FUNDS THIS LOAN AGREEMENT (the "Agreement ") dated, for identification purposes only, as of February , 2016, is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation ( "City ") and Santa Ana Arts Collective, L.P. ( "Developer ") with reference to the following: RECITALS: A. The City is the recipient of Community Development Block Grant ( "CDBG ") funds from HUD pursuant to Tile I of the Housing and Community Development Act of 1974, as amended ( "Act ") and 24 CFR 570 ( "CDBG Regulations "), Catalog of Federal Domestic Assistance (CFDA) Number 14.218, and Federal Award Identification Number (FAIN) B -15- MC-06- 0508 in the amount of $5,434,375. B. The City is authorized by the CDBG Regulations to expend finds to increase the supply of low- and moderate - income housing available at affordable housing costs. C. The Housing Opportunity Ordinance, Santa Ana Ordinance No. NS -2881, established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to Santa Ana Municipal Code ( "SAMC ") section 41- 1904(c), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the hiclusionary Housing Fund, as defined by SAMC section 41 -1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41 -1909. D. In order to utilize money in the Inclusionary Housing Fund, the City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all applications, the Developer's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. E. Developer is entering into this agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a fifty -eight (58) unit multi - family residential housing development, with live /work units and a possible commercial art studio, as well as a community room (the "Project ") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property "). The CDBG funds referenced herein shall assist in the rehabilitation only and the Inclusionary Housing finds will assist in the construction and soft costs of said Project. F. In furtherance of the Inclusionary Housing Program and CDBG guidelines, Developer has applied to the City for a loan with which to: 2 r provide deeper affordability and construct the improvements to the Property, and 2. thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. G. The City, on certain terms and conditions, desires to make such loan ( "City Loan ") to Developer in order to make possible the rehabilitation and construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. H. If there is any inconsistency between Federal, State, and local 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 Developer agree as follows: DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and /or as set forth in this Article 1. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 570 [no state funds]. "Affordability Restrictions on Transfer of Property" means that certain documents affecting real property benefiting the City, attached hereto as Exhibit B. "Affordable Rent" means the monthly rents which do not exceed the maximum amoLmt applicable to Extremely Low, Very Low and Low Income households, as promulgated by the U.S. Department of Housing and Urban Development (HUD), or by the State of California, as applicable. "Building Permit" means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "CDBG Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit E, to be executed by Developer pursuant to Section 5.13.2 in order to secure the CDBG Promissory Note. 25B -9 "CDBG Loan" means the CDBG funds that will be awarded to the Developer under this agreement that must be repaid through residual receipts. "CDBG Promissory Note" means that certain promissory note in the original principal amount of $500,000 in the form attached hereto as Exhibit F, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the City Loan through residual receipts as further described in the CDBG Promissory Note. corporation. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal "City Loan" means, collectively, the CDBG Loan and the Inclusionary Loan. "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Loan Agreement and City Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the purchase of the Property pursuant to the purchase contract. "Community Development Block Grant" or "CDBG" has the meaning set forth in Recital "A" above. "County" means the County of Orange, California. "Developer" means Santa Ana Arts Collective, L.P., a California limited partnership. "Developer's Representative" shall mean an officer of the General Partner of Developer or his /her designee. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Event of Default" has the meaning set forth in Section 20.1. "General Partner" means the Santa Ana Arts Collective, LLC, a California limited liability company "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. 25B -10 "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sue., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "Housing Opportunity Ordinance" means the Santa Ana Ordinance No. NS- 2881, and as such terms may be amended by the Santa Ana City Council in the future. "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, as required through the City of Santa Ana Planning and Building Agency entitlement process. "Inclusionary Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit C, to be executed by Developer pursuant to Section 5.B.1 in order to secure the Inclusionary Promissory Note. "Inclusionary Housing Fund" means the fund created by the City of Santa Ana in which all fees collected in compliance with the Housing Opportunity Ordinance shall be deposited, as defined by Santa Ana Municipal Code section 41 -1901 and applied by Santa Ana Municipal Code section 41 -1909. "Inclusionary Loan" means the Inclusionary Funds that will be awarded to the Developer under this agreement that must be repaid through residual receipts. "Inclusionary Promissory Note" means that certain promissory note for Inclusionary Funds in the original principal amount of $1,875,000 in the form attached hereto as Exhibit D, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the Inclusionary Loan through residual receipts as further described in the Inclusionary Promissory Note. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non - recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 14.5. 5 25B -11 "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Documents" means, collectively, this Agreement, the hiclusionary Promissory Note, the Inclusionary Deed of Trust, CDBG Promissory Note, CDBG Deed of Trust, Affordability Restrictions on Transfer of Property, Project Budget, Scope of Work / Schedule of Performance, and any other agreement, document, or instrument that the City reasonably requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMP'. "Partnership Agreement" means the Agreement of Limited Partnership of Santa Ana Arts Collective, L.P., dated as of December 1, 2015. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means the Senior Loan Deed(s) of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the hnprovements upon the Property by Developer pursuant to this Agreement. "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. 25B -12 "Property" means the property that is located at 1666 N. Main Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Scope of Work /Schedule of Performance" means the detailed statement of the work to be performed by Developer on and to the Property pursuant to this Agreement, along with the Schedule of Performance setting forth timeframes for certain tasks, which document is attached hereto as Exhibit H. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender which is either a construction loan in the approximate principal amount of $18,000,000.00 with a terns of approximately two (2) years or a permanent loan in the approximate principal amount of $3,788,911 with a term of approximately 18 years and an amortization period of 30 years. "Senior Loan Deed of Trust" means the first deed(s) of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty -five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 1.2 Singular and Plural Terms. Any defined term used in the plural in this Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 25B -13 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] SCOPE OF WORK/PROJECT BUDGET A "Scope of Work" and "Schedule of Performance" for the Property is attached hereto as Exhibit H. Any material change to the Scope of Work/Schedule of Performance requested by the Developer shall be subject to the prior written approval of the City Project Manager. The Scope of Work/Schedule sets forth the construction work that shall be performed on the Property and timeframes for approvals of such work. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit G (the "Project Budget "). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the City Project Manager. 4. [RESERVED] 5. CITY LOAN: The Inclusionary Loan shall be evidenced by the Inclusionary Promissory Note and the CDBG Loan shall be evidenced by the CDBG Promissory Note in the forms attached hereto as Exhibit D and Exhibit E. The Inclusionary Loan and the CDBG Loan shall be secured by the Inclusionary Deed of Trust and CDBG Deed of Trust, respectively, in the forms attached hereto as Exhibit C and Exhibit F. The terms and conditions of the City Loan are as set forth in the Inclusionary Promissory Note and CDBG Promissory Note. The term of affordability for the Project is fifty -five years from the receipt of Certificate of Occupancy for the Project, or repayment of the City Loan, whichever is longer. A. INCLUSIONARY HOUSING FUNDS: 1. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan to Developer from Inclusionary Housing funds in the principal amount of up to $1,875,000.00 for the construction and other costs of the Project. B. CDBG FUNDS: 1. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan of CDBG funds to Developer in the principal amount of up to $500,000.00 solely for the property rehabilitation- related costs of the Project. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 25B -14 6.1 Conditions Precedent. City's obligation to disburse the loan is subject to the satisfaction, or waiver by the City Project Manager, of the following conditions precedent: (a) Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signature(s) aclarowledged where necessary, each of the following documents: (i) this Loan Agreement; (ii) the Inclusionary Promissory Note ($1,875,000); (iii) the Inclusionary Deed of Trust; (iv) CDBG Promissory Note ($500,000); (v) CDBG Deed of Trust; and (vi) the Affordability Restrictions on Transfer of Property. (b) Title Insurance. City shall have received an ALTA Extended (LP -10) Loan Policy (6- 17 -06), or evidence of a commitment therefore satisfactory to City, issued by First American Title Insurance Company and in form and substance satisfactory to City, together with all endorsements and binders required, naming City as the insured, in a policy amount of not less than the total City Loan Amount, showing Developer as the fee owner of the Property and insuring the Inclusionary Deed of Trust and CDBG Deed of Trust to be a valid priority lien on the Property. This Agreement, the Inclusionary Promissory Note, Inclusionary Deed of Trust, CDBG Promissory Note, and CDBG Deed of Trust shall all be subordinate to the Senior Loan Note and Senior Loan Deed of Trust. (c) Affordability Restrictions on Transfer of Propert y. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit B, the Affordability Restrictions on Transfer of Property pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, sanitary and affordable rental housing pursuant to the affordability requirements of Code of Federal Regulations ( "CFR ") section 92.252 or 92.254 and California Health and Safety Code ( "H &S ") sections 50052.5 and 33334.3, as applicable. The City's Affordability Restrictions on Transfer of Properly shall remain in first position on title and shall not be subordinated. (d) Documents Recorded. This Loan Agreement, the Inclusionary Deed of Trust, CDBG Deed of Trust and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (e) Request for Notice. For the benefit of City, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default "). 25B -15 (f) Insurance. City shall have received evidence satisfactory to the City Attorney that all of the policies of insurance required by Section 19 of this Agreement are in full force and effect. (g) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct in all material respects as of the Close of Escrow as though made on and as of that date, and if requested by the City Project Manager, City shall have received a certificate to that effect signed by Developer's Representative. (h) No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the City Project Manager, City shall have received a certificate to that effect signed by Developer's Representative. 6.2 Disbursement Procedures for Loans The City Loan proceeds shall be disbursed through Escrow to finance the acquisition and construction of the Project (as evidenced in Exhibit G). The City Loan proceeds shall not be used for any purpose other than for acquisition and predevelopment and construction related costs, including Developer fee and soft costs related to the development of the Project (costs all subject to City's prior review). However, CDBG Funds shall only be used for property rehabilitation- related costs of the Project. 6.3 First Disbursement. City's obligation to make the first disbursement of the Loan is subject to satisfaction of the following conditions precedent: (a) General Contractor. If the City Project Manager has not yet approved the General Contractor, the City Project Manager shall have approved the identity and qualifications of the General Contractor. (b) Contract for construction. The City Project Manager must have reviewed and approved the contract for construction. 6.4 Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied (subject to applicable notice and cure rights) or waived by the City Project Manager, and (b) City is not in default under this Agreement, City may terminate this Agreement without any further liability on its part by giving written notice of termination to Developer. Upon the giving of such notice, all principal, interest and other amounts owing under the specified due date. 6.5 Any Disbursement. City's obligation to make any disbursement of the Loan (including the first and final disbursements is subject to the satisfaction of the following conditions precedent: 10 25B -16 (a) Satisfactory Progress. The City Project Manager shall be satisfied, based on his/her own inspections or other reliable information that the construction is progressing satisfactorily in conformance with all applicable laws and other requirements (including the City's Inclusionary Housing guidelines and CDBG federal regulations). (b) Condition of Title. Either (i) the City Project Manager reasonably believes 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 against the Property with respect to the subject disbursement, or if such claim is made, then City Project Manager shall receive satisfactory evidence that such claim has been bonded over until its resolution; or (ii) City must have received, at Developer's expense but payable out of the Loan proceeds from the title insurer who issued City's LP -10 Title Policy, all endorsements thereto then reasonably required by City (including, without limitation, CLTA Form 122 -- priority of advance endorsements). (c) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other City 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 Developer shall remain uncured (unless, to the extent permitted under this Agreement, Developer is diligently taking action to cure such default) and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer. 6.6 Final Disbursement. City's obligation to disburse that portion of the Loan funds 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 Occupanc Imo. Any portion of the construction work requiring inspection or certification by any Governmental Authority shall have been inspected and certified as complete. Developer shall request that the Building Department issue a Certificate of Occupancy, a copy of which shall be delivered to the City Project Manager, in order for final disbursement to occur. (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 materialman'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 Developer shall have bonded over any such lien to City's reasonable satisfaction. 6.7 Waiver of Conditions. The conditions set forth pertaining to City's obligation to make 11 25B -17 disbursements of the Loan proceeds are for City's benefit only and the City Project Manager may waive all or any part of such rights by written notice to Developer. 6.8 Disbursement Requests, The Loan proceeds shall be disbursed on a line -item by line- item basis in accordance with the Project Budget and subject to the conditions in this section. In no event shall City have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Project Budget. Disbursements shall be made only upon Developer's written request in the form of a Disbursement Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as City may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to City, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b) all other documents and information reasonably required by City. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by City of proceeds of the loan, Developer shall deliver to City a draw request ( "Draw Request "), and all required supporting information as set forth in the Loan Documents or as otherwise reasonably required by City in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City shall notify the Developer of approval or disapproval of each Draw Request within five (5) Business Days after receipt of the Draw Request, using the City's "Disbursement /Change Order Approval Notice ". City shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 6.9 Manner of Disbursement. City may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by City. 6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by City or Developer to be required to complete all matters included in any line item in the Project Budget exceeds the amount allocated to that line item in the Project Budget, (b) Project costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the Loan proceeds is or may be insufficient to pay all construction of the Project that may be payable under the City Loan Documents or otherwise in connection with the construction, Developer shall, within ten (10) days after it receives written notice thereof from City of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to City that Developer has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost ") with funds from a source other than the City Loan; 12 25B -18 (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the City Project Manager's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non - interest bearing account (the "Overnm Account ") with City from which withdrawals may be made only with the consent of the City Project Manager 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. City shall have no obligation to make further disbursements until Developer has paid or otherwise provided for the overrun as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of any remaining Loan proceeds in the manner described in subsection 9.3(c). 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 will withhold a Retainage of 10% from each Disbursement for each of the Hard Cost line items of the Project Cost Breakdown (and other line items thereof designated for withholding of retainage) until all conditions to the final Disbursement of Hard Costs have been satisfied. In lieu of City's withholding Retainage, Developer can by written notice to City elect not to draw any overhead or profit as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. City shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to City proving payment in full or for soft costs. 6.13 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 City Project Manager) for "punch- list" items. Such holdback will be released when all punch -list items have been completed to the satisfaction of City. 6.14 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. 6.15 Modification of Disbursement Conditions and Procedures. The City Project Manager shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the contract for construction. 6.16 Other Terms and Conditions of Loan. 13 25B -19 the following: A. The Note(s) shall become immediately due and payable, in the event of any of (1) failure to complete the Project within four (4) years of the recording date; (2) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; (3) an Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 6 .17 Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROJECT 7.1 Use Covenants and Restrictions. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all of the rental units on the Property available to extremely low, very low and low income households at rents affordable to such households for fifty-five (55) years (except for one unit for the onsite manager). The Project shall consist of approximately fifty -eight (58) residential units. Enforceability of restrictions on the fifty -seven (57) units shall be enforced until the date that is fifty -five (55) years after the date on which the Certificate of Occupancy is issued. 7.2 Affordability Levels/Unit Mix: The proposed unit mix and levels of affordability are as follows: Bedroom Size 30% AMI 50% AMI 60% AMI Manager's Unit Total 1 Bedroom 2 24 26 2 Bedroom 2 12 1 15 3 Bedroom 2 15 -- 17 Totals 6 24 27 1 58 The remaining unit will be a 2- bedroom unit reserved for the onsite manager. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). 14 25B -20 * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The Housing Authority of the City of Santa Ana publishes the Utility Allowance Schedule. 7.3 Rent Increases: On an annual basis, the City shall provide the Developer with the maximum allowable schedule of rents for the Property. hi no event can Developer charge any tenant more than such amount. 7.4 Maintenance of the Property. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the City, unless such condition cannot reasonably be cured within thirty (3 0) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the City may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The City shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Section 17 of this Agreement. 7.5 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, disability, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 8. DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perform any term or provision of this Agreement within the time periods provided herein for such performance constitutes a default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of written notice of termination to Developer. 15 25B -21 8.2 Institution of Legal Actions. In addition to any other rights or remedies, either parry may institute legal action to cure, correct or remedy any default to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.4 Damages. In the event that the City is liable for damages to Developer, such liability shall not exceed costs incurred by the Developer in the performance of this Agreement and shall not extend to compensation for loss of future income, profits or assets; provided, however, Developer's only remedy for any breach of this Agreement by the City shall be an action for specific performance of such party's obligations. 8.5 Nonrecourse Liability. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached Note and Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the loan evidenced by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 9. GENERAL PROVISIONS AND WARRANTIES As a material inducement to City to enter into this Agreement, Developer represents and warrants as follows: 9.1 Formation, Qualification and Compliance. Santa Ana Arts Collective, L.P. is a California limited partnership. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 9.2 Execution and Performance of Loan Documents. 9.2.1 Developer has all requisite authority to execute and perform its obligations under the Loan Documents. 9.2.2 The execution and delivery by Developer of, and the performance by Developer of its obligations under, each Loan Document that 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 Developer; (b) violate any provision of, or require any consent or 16 25B -22 approval not heretofore obtained under, any articles of incorporation, by -laws or other governing document applicable to Developer; (c) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the City Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (d) to best of its knowledge, violate any provision of any law presently in effect; or (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 Developer is a party or by which Developer or any of its property is bound. 9.2.3 Developer is not in default, in any respect that is materially adverse to the interests of City under the Loan Documents or that would have any material adverse effect on the financial condition of Developer or the conduct of its business, under any law, contract, lease or other agreement or document described in sub - paragraph (d) or (e) of the previous subsection. 9.2.4 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 by Developer of, and the performance by Developer 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 Developer's knowledge, all financial information furnished to City with respect to Developer in connection with the Loans (a) is complete and correct in all material respects as of the date of preparation thereof, (b) accurately presents the financial condition of Developer, and (c) has been prepared in accordance with generally accepted accounting principles consistently applied or in accordance with such other principles or methods as are reasonably acceptable to City. To the best of Developer's knowledge, all other documents and information furnished to City with respect to Developer, in 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 Developer's knowledge Developer has no material liability or contingent liability not disclosed to City in writing and there is no material lien, claim, charge or other right of others of any kinds (including liens or retained security titles of conditional vendors) on any property of Developer not disclosed in such financial statements or otherwise disclosed to City in writing. 9.4 No Material Adverse Change. There has been no material adverse change in the condition, financial or otherwise, of Developer since the dates of the latest financial statements 17 25B -23 furnished to City. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to City in writing. 9.5 Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawBal extensions disclosed to City in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to City. 9.6 Governmental Requirements. To best of its knowledge, Developer is in compliance with all laws relating to the Property and all Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 9.7 Rights of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8 Litigation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer or any property of Developer before any Governmental Authority, except as disclosed to City in writing prior to the execution of this Agreement. 9.9 Bankruptcy. To the best of Developer's knowledge, no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Developer, nor are any of such proceedings contemplated by Developer. 9.10 Information Accurate. To the best of Developer's knowledge, all information, regardless of its form, conveyed by Developer to City, by whatever means, is accurate, correct and sufficiently complete to give City true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. 9.11 Conflicts of Interest. No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his /her personal interests or the interests of any corporation, partnership or association in which he /she has a direct or indirect financial interest. The Developer warrants that it neither has paid nor given, nor will pay or give, any third party any money or other consideration for obtaining this Agreement. 9.12 Nouliability of City Officials and Employees. No member, official or employee of the City shall be personally liable to the Developer in the event of any default or breach by the City or for 18 25B -24 any amount which may become due to Developer or on any obligations under the terms of this Agreement. 9.13 No Assignment. Developer expressly acknowledges and agrees that the City has only agreed to assist the Developer as a means by which to induce the construction/development of the Project. Accordingly, Developer further expressly acknowledges and agrees that this Agreement is a personal right of Developer that is neither negotiable, transferable, nor assignable except as set forth herein. Developer may assign some or all of its rights under the Agreement only with the prior written consent of the City Project Manager (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by a limited partner of Developer to an affiliate, or as otherwise provided in the Deed of Trust. 9.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and California state law with venue in Orange County, California. 9.15 Third Parties. This Agreement is made for the sole benefit of Developer and the City and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the City hereunder or arising from any default by Developer, nor shall the City owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the construction of the Property. 9.16 Control of Property. The parties acknowledge that the City has not 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. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the construction and conversion of the Property. 10.2 Commencement and Completion of Construction. The construction of the Project shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by Governmental Authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 10.3 Change Orders. The contract for construction shall not be modified except pursuant to change orders. All change orders: (a) shall be in writing, numbered in sequence, signed by Developer and submitted to City prior to the proposed effectiveness thereof and accompanied by any working drawings and a written narrative of the proposed change. (b) Shall be subject to the City Project Manager's prior 19 25B -25 written approval 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice, City and its agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the construction are stored, (b) the right to inspect all labor performed and materials furnished for the construction, and (c) the right to inspect and copy all documents pertaining to the construction. 10.5 Compliance with Section 3 Clause. Section 3 of the Housing and Urban Development act of 1968, 12 U.S.C. 1701u, as amended by Section 915 of the Housing and Community Development Act of 1992 requires that economic opportunities generated by HUD financial assistance for housing and community development programs be targeted toward low- and very low- income persons. Whenever HUD assistance generates opportunities for employment or contracting, state and local grantees, as well as other recipients of HUD housing assistance funds must, to the greatest extent feasible, provide these opportunities to low- and very low- income persons and to businesses owned by or employing low- and very low- income persons. Section 3 applies to projects for which HUD's share of project costs exceeds $200,000 and contracts and subcontracts awarded on projects for which HUD's share or project costs exceeds $200,000 and the contract or subcontract exceeds $100,000. For purposes of this Section 3 Clause and compliance thereto, whenever the word "contractor" is used it shall mean and include, as applicable, the Developer, and its contractor and subcontractor(s), if any. The particular text to be utilized in any and all contracts of any contractor doing work covered by Section 3 shall be in substantially the form of the following, as reasonably determined by the City, 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. 170lu ( "Section 3 "). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD - assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low -and very low- income persons [inclusive of 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 at 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 20 25B -26 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. (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 tinder penalty of perjury that contractor has read the requirements of the Section 3 Clause and accepts all its requirements contained therein for all of his /her operations related to this contract." To the extent applicable, the Developer shall comply and /or cause compliance with Section 3 Clause requirements for the Project. For example, when and if Developer or its contractor (s) /subcontractor(s) hire(s) full time employees, rather than volunteer labor or materials, Section 3 is applicable and all disclosure and reporting requirements apply. 10.6 Construction Information. From time to time during the course of the construction, within ten (10) Business Days following City's written demand therefore, Developer shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the construction, itemized as to trade description and item, showing the name of the contractor(s) and /or subcontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Against Liens: Developer shall diligently file a valid Notice of Completion upon completion of the construction, diligently file a notice of cessation in the event of a cessation of labor on the construction for a period of thirty (30) days or more, and take all actions 21 25B -27 reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the City by any person furnishing labor or materials to the Property, Developer shall immediately give written notice of the same to City and shall, promptly and in any event within ten (10) Business Days after written demand thereof, (a) pay and discharge the same, (b) effect the release thereof by delivering to City a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as City may require to release City from any obligation or liability with respect to such stop notice or claim. 11. FEDERAL - CDBG COVENANTS 11.1 Contract Provisions for Non- Federal Entity Contracts Under Federal Awards. Developer shall comply with the requirements at Appendix II to Part 200. 11.2 Oualification as Affordable Housing. As more particularly provided in the Affordability Restrictions on Transfer of Property, Developer shall use, manage and operate the Property in accordance with the requirements of 24 CFR 570, 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. Developer shall comply with the requirements of 24 CFR 92.253. 11.4 [Intentionally Omitted] 11.5 Handicapped Accessibility. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C governing accessibility of projects assisted under the CDBG Program; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35 -36 in order to make the Project readily accessible to and usable by individuals with disabilities. 11.6 Use of Debarred, Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 11.7 Maintenance of Drug -Free Workplace. Developer shall certify that Developer will provide a drug -free workplace in accordance with 24 CFR 84.13. 11.8 Lead -Based Paint. Developer shall comply with the requirements, as applicable of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821 -4846) and implementing regulations at 24 CFR 35. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by 24 CFR 22 25B -28 92.351 and the City of Santa Ana's adopted affirmative marketing procedures and minority outreach program. 11.10 Equal Opportunity and Fair Housing. Developer shall carry out the construction and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing described in 24 CFR 92.350. Developer must also follow the requirements of Health and Safety Code section 33435. 11.11 Property Standards. Developer shall cause the Property to meet the housing quality standards set forth in 24 CFR 882.109, as well as all applicable local, state and federal codes and ordinances, including zoning ordinances. Developer shall also cause the Property to meet the current edition of the Model Energy Code published by the Council of American Building Officials. 11.12 Displacement and Relocation. Developer acknowledges and agrees that, pursuant to 24 CFR 92.253 and consistent with the other goals and objectives of this part, City must ensure that it has taken all reasonable steps to minimize the displacement of persons as a result of the construction. Furthermore, to the extent feasible, residential tenants must be provided a reasonable opportunity to lease and occupy a suitable, decent, safe, sanitary and affordable dwelling unit on the Property upon completion of the construction. Developer agrees to cooperate fully and completely with City in meeting the requirements of 24 CFR 92.253 and shall take all actions and measures reasonably required by the City Project Manager in connection therewith. All applicable state guidelines must also be followed. 11.13 Other Program Requirements. Developer shall cant' out each activity in compliance with all federal laws and regulations described Subpart K 24 CFR 570, except that Developer does not assume City's responsibilities for environmental review in 24 CFR 570.604 or the intergovernmental review process in 24 CFR 570.612. 11.14 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the rehabilitation and soft costs of the Project). The amount of each request shall be limited to the amount needed. 11.15 Eligible Costs. Developer shall use CDBG Funds to pay costs defined as "eligible costs" pursuant to 24 CFR 92.206. 11.16 Records and Reports. Developer shall maintain and from time to time submit to City such records, reports and information as the City Project Manager may reasonably require in order to permit City to meet the record keeping and reporting requirements required of it pursuant to 24 CFR 92.508. 23 25B -29 11.17 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. Developer shall comply with the requirements and standards of 2 CFR 200. 11.18 Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth at 24 CFR 570.611, as well as state regulations pertaining to conflict of interest. 11.19 Monitoring. Developer shall allow the City to conduct periodic inspections of each of the assisted units on the Property as required by the Program after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 11.20 Recertification of Tenant Income. (a) Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis. (b) Developer shall allow the City to conduct periodic reviews of tenant files and files relating to affirmative marketing and outreach to insure the Project's compliance with applicable regulations and guidelines. (c) City assisted units continue to qualify as affordable housing despite a temporary non - compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section until the non - compliance is corrected. 11.21Other CDBG Program Requirements. Developer shall comply with all other applicable requirements of the CDBG Program. 11.22 Citv Requirements. Developer shall comply with the following: (a) Onsite Services: The Developer shall provide on -site services that are available to the residents and shall report to the City annually the services provided. (b) Coordination with the WORK Center: The Developer and the Property Manager shall coordinate with the City's WORK Center to provide services and outreach to tenants, as well as provide information on employment during the construction of the Project. (c) Tenant Satisfaction Survey: The Developer shall complete and submit to the City biennial tenant satisfaction surveys of tenants. (d) Rental Inclusionary Housing Manual: The Developer shall also maintain compliance with the City's Inelusionary Housing Manual for Rental Projects. 24 25B -30 11.23 Controlling Covenants. If there is a discrepancy between Local, State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a businesslike manner; shall prudently preserve and protect its own as well as the City's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of City's interests under the Loan Documents. Without limiting the generality of the foregoing, and except as otherwise agreed by City in writing from time to time, Developer shall promptly and faithfully perform and observe the following provision: 12.1.1 Alterations and Repair. Developer 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. Developer shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the obtaining of Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's business thereon. 12.3 Taxes and Impositions. Developer shall pay, prior to delinquency, all of the following (collectively, the "Impositions "): (a) all general and special real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non - governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on City (other than City's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). 12.3.1 Right to Contest. Developer shall not be required to pay any Imposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of 25 25B -31 the Property in satisfaction of such Imposition or otherwise impair the City's interests under the Loan Documents, and (c) Developer has furnished City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 12.3.2 Evidence of Payment. Upon demand by City from time to time, Developer shall deliver to City, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. 12.3.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, in accordance with 24 CFR 92.508. 12.4 [Intentionally Omitted] 12.5 Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ( "Project Operating Account "). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Budget, as it may be revised from time to time with prior City approval. Developer may make withdrawals from this account solely for the payment of project expenses and project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the City. 12.6 Replacement Reserve Account. Developer must establish or cause to be established a segregated interest - bearing replacement reserve depository account ( "Replacement Reserve Account ") no later than the commencement of the permanent financing period for the Project. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer's Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Project that are reasonably required to preserve the Project. Developer may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the City. 13. NONDISCRIMINATION COVENANTS 13.1 Obligation to Refrain from Discrimination. Developer covenants and agrees that: (a) In Use of Property. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, disability, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. 26 25B -32 (b) In Affordable Housing Restrictions. The foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (c) remain effective for the term of the contract (for 55 years). (c) In Employment. In construction on the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, disability, creed, religion, sex, marital status, disability, national origin, or ancestry. (d) In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor for the benefit of City, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the City, Developer has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14.2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the construction of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3 Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property. 14.4 Notice of Environmental Matters. Developer shall immediately advise City in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 27 25B -33 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and its respective officers, directors, employees and agents (collectively the "Indemnities ") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the Indemnities directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the Inclusionary Promissory Note, Inclusionary Deed of Trust, CDBG Promissory Note, or CDBG Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 15.1 Existence. The sole member of Developer's managing general partner shall maintain its existence in good standing under the laws of the State of California, and Developer shall provide documentation of such status annually to the City. 15.2 Protection of Lien. Developer shall maintain the lien of the hiclusionary Deed of Trust and CDBG Deed 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 all documents, reasonably required by City from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to City, within ten (10) days of Developer's learning thereof, of each of the following: (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Developer or any general partner to liability in excess of $5,000, whether covered by insurance or not; (b) any dispute between Developer and a Governmental Authority relating to the Property, the adverse determination of which might materially affect the Property; (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; (f) any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; M 25B -34 (g) the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and /or (h) any material adverse change in the financial condition of Developer. 15.4 Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to City all documents, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents; to protect and further the validity, priority and enforceability of the Inclusionary Deed of Trust and CDBG Deed of Trust; to subject to the Deed(s) of Trust any property intended by the terms of any Loan Document(s) to be covered by the hiclusionary Deed of Trust and CDBG Deed of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. 15.5 Annual Financial Statements. Developer shall deliver to City, within one hundred fifty (150) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, (ii) fairly present Developer's financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies. Developer shall include in said reports, a document in the "Form of Residual Receipts Report" attached hereto as Exhibit I and incorporated herein. 15.6 Audits and Access to Records. Developer agrees that City, the U.S. Department of Housing and Urban Development, the Comptroller General of the United States or any of their authorized representatives shall have the right of access, upon reasonable notice, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability or recapture period ends. 15.7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the City every fifth (5 ") year beginning January 2020. 16. OTHER COVENANTS 29 25B -35 While any obligation of Developer under the Inclusionary Promissory Note, Inclusionary Deed of Trust, CDBG Promissory Note, or CDBG Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 16.1 Default on Senior Loan. Developer shall not default on any of the Senior Loan documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Sale or Lease of Property. Unless and until Developer has received a Certificate of Completion for the construction from City, Developer shall not sell, lease, sublease or otherwise transfer all or any part of the Property or any interest therein without the prior written consent of the City Project Manager, which consent may be withheld in the City Project Manager's reasonable discretion. In connection with the foregoing consent requirements, Developer acknowledges that City relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the construction. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of a General Partner's interest in Developer when made in connection with the exercise by the Developer's limited partner (the "Limited Partner ") of its rights upon a default by a General Partner under the Developer's Partnership Agreement (the "Partnership Agreement ") or upon a General Partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the General Partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the Managing General Partner pursuant to the right of first refusal or to the General Partners pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Developer. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction and upon the request of Developer, or at its own election, the City of Santa Ana shall issue a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction. If City declines to furnish a Certificate of Completion after written request from Developer, the City Project Manager shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefore. The statement shall contain a description of the action Developer must take to obtain a Certificate of Completion. If the reason therefore is that the Developer has not completed a minor portion of the construction, City IN 25B -36 may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with City of a bond or other form of security acceptable to the City Project Manager in the amount of the fair value of the uncompleted work. A Certificate of Completion is not evidence of compliance with or satisfaction of the Loan Documents or any obligation of Developer to any other party whatsoever, including any holder of a mortgage or deed of trust. A Certificate of Completion is not "notice of completion" referred to in Section 3093 of the California Civil Code. 18. INDEMNIFICATION 18.1 Nonliability of City. Developer acknowledges and agrees that (a) The relationship between Developer and the City is and shall remain solely that of Developer and lender, City neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the construction, including matters relating to: (i) the performance of the construction work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress of the construction; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by City in connection with such matters is solely for the protection of City and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the City is not a partner, joint venture, alter -ego, manager, controlling person or other business associate or participant of any kind of Developer and City does not intend to ever assume any such status; (ii) City's activities in connection with the Loan shall not be `outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and City does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and (iii) City shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and (d) By accepting or approving anything required to be performed or given to City under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 31 25B -37 18.2 Indemnity. Developer shall defend (by counsel satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the making of the Loan(s); (iii) a claim, demand or cause of action that any person has or asserts against Developer; (iv) any act or omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property; or (vi) the ownership, occupancy or use of the Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify City with respect to the consequences of any act of gross negligence or willfal misconduct of City. Developer's obligations under this Section shall survive the cancellation of the City Promissory Note, release and reconveyance of the City Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. 18.2.1 Notwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result in the repayment of principal and /or interest under the Loan. 18.3 Reimbursement of City. Developer shall reimburse City immediately upon written demand for all costs reasonably incurred by City (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of City) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty (20) days after City gives written demand to Developer and shall be secured by the City Deed of Trust. Such reimbursement obligations shall survive the cancellation of the Loan Note, release and reconveyance of the City Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the construction; (b) prior to commencement and following completion of the construction, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); 32 25B -38 (c) upon commencement of the construction and at all times prior to completion of the construction, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonably required by the City from time to time, and in no event less than $1,000,000; and (f) any other insurance reasonably required by City. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to City. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to City, showing the City as encumbrance. The City shall be named as an additional insured in the policies required under subparagraphs (d) and (e). Certificates of insurance for the above policies (and /or original policies, if required by City) shall be primary and delivered within ten (10) days after demand therefore, and prior to start of any construction work. All policies insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co- insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to the City Attorney. 19.2 City Attorney May Modify, The City Attorney may modify the type and amounts of insurance required pursuant to this Section. 19.3 Claims and Proceedines. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi - public use of any portion of the Property (collectively, "Condemnation "), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and /or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 19.4 Delivery of Proceeds to City. In the event that, notwithstanding the 33 25B -39 "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 19.5 Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds ") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions ") within ninety (90) days (unless extended by mutual agreement of Developer and City) following the occurrence of the damage for which the Proceeds are collected: (a) Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b)) will be adequate to repair the Improvements and to restore the fair market value of the Property, within a time period reasonably determined by City, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of (i) plans and specifications reasonably satisfactory to City, and (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to City. (b) To the extent that the Proceeds are insufficient to accomplish the restoration required above, Developer shall deliver to City funds (the "Shortfall Funds ") in the amount of such shortfall, which funds shall be assigned to City as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. (c) Developer shall execute such documents as City requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by City against any obligations to City that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within one hundred eighty (180) days (unless extended pursuant to Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by City against any obligations to City that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in its sole and absolute discretion. 19.8 Restoration. Nothing in this Section 19 shall be construed to excuse 34 25B -40 Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation "). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to City shall be paid to Developer or Developer's assignee. City shall have no 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 liens are not impaired, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.9.2 Notwithstanding the foregoing, during the tax credit compliance period for the Project, as determined under Section 42 of the Internal Revenue Code, any condemnation proceeds may be used by the Developer for repair and /or restoration of the Project. 19.10 Waiver of Subrogation. Developer hereby waives all rights to recover against the City (or any officer, employee, agent or representative of City) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: (a) Developer fails to make any payment of principal or interest under the City Promissory Note when due, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the payment of 35 25B -41 money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30) -day period, such failure shall not be an Invent of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within one hundred twenty (120) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; (f) Work on the construction ceases for thirty (30) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other deity, strikes or other causes beyond Developer's reasonable control), provided that the same do not, in the aggregate and in the City's reasonable judgment, threaten to delay the completion of the construction beyond the required completion date set forth in this Agreement; (g) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues unstayed for sixty (60) days or more for any reason; (h) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the City Project Manager's prior written consent; (i) Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, construction or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of 36 25B -42 attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or 0) (i) any of the Senior Loan documents is revoked or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the City Project Manager's prior written consent, or (ii) Developer defaults or otherwise fails to perform any of its duties or obligations under or in connection with any of the Senior Loan documents, subject to all applicable notice and cure periods, or (iii) any of the Senior Loan documents is 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 Developer's Limited Partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, City may, at its option and in its absolute discretion, do any or all of the following: (a) By written notice to Developer, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 (e) shall automatically, without notice or other action on City's part, cause all such amounts to be immediately due and payable; (b) In its own right or by a court- appointed receiver, take possession of the Property, enter into contracts for and otherwise proceed with the completion of the construction by expenditure of its own funds; (c) Exercise any of its rights under the Loan Documents and any rights provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as City elects in its sole and absolute discretion; and, (d) Suspend or terminate the award of hiclusionary Housing and CDBG funds if Developer fails to comply with any term of such award. 20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Developer requiring 37 25B -43 further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. The City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations; City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights. 21. MISCELLANEOUS 21.1 Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Developer, or any other claim by developer against City, in connection with the Loan or otherwise, Developer hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Developer's obligations under the Loan Documents, or (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Developer of any of its obligations under the Loan Documents. 21.2 Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: If to Developer: Santa Ana Arts Collective , L.P. c/o Meta Housing Corporation 1640 Sepulveda Blvd, Ste. 425 Los Angeles, CA 90025 Attention: President With a copy: The tax credit investor for the project If to City: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M -26) P.O. Box 1988 Santa Ana, California 92702 Attention: City Project Manager With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M -29) Santa Ana, California 92702 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non - receipt of any notice as the result of a change of address of which the 9 25B -44 sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loan(s) described herein and have been or will be relied on by City notwithstanding any investigation made by either party. 21.4 No Third Parties Benefited. This Agreement is made for the purpose of setting forth rights and obligations of Developer and the City, and no other person shall have any rights hereunder or by reason hereof. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and City and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under any Loan Document without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Any such assignment without such consent shall, at City's option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the City and Developer with respect to the Loan and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rein 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. 21.10 Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, this Agreement, unless otherwise expressly provided, shall prevail; provided however that, with respect to any matter addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other 39 25B -45 shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed. 21.11 Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 21.12 Conflict of Interest. No member, official or employee of the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 21.13 Warranty AEainst Payment of Consideration. Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 21.14 Nonliability of City Officials and Employees. No member, official or employee of City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Developer or successor, or on any obligation under the terms of this Agreement. 21.15 Plans and Data. Where Developer does not proceed with the work and construction of the Project, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to City any and all plans and data concerning the Property, and City or any person or entity designated by City shall have the right to use such plans and data without compensation to Developer. Such right of City shall be subject to any right of the preparer of the plans to their use. 21.16 Authoritv to Enter 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 the City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 21.17 Transfer of Developer Limited Partner's Interest. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, no consent shall be required of the City (and it shall not be deemed a default or an Event of Default under any of the Loan Documents), in connection with the transfer and/or the assignment by the Developer's limited partner of its interest in the Developer to an entity controlled or managed by an entity which is related to or under common control with the Developer's limited partner. 21.18 Removal of Developer's General Partner. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, the removal and /or replacement of a General Partner for cause in accordance with the Partnership Agreement shall not require the consent of the City and shall not constitute a default or an Event of Default under this Agreement or the Loan Documents or accelerate the maturity of the City Loan. If the Developer's limited partner exercises its right to remove a General Partner, City will not unreasonably withhold its consent to the substitute general partner; provided however, the consent of either the City shall not be 40 25B -46 required if the substitute general partner is an affiliate of the Developer's limited partner. The substitute general partner shall assume all of the rights and obligations of the removed general partner hereunder. 41 25B -47 IN WI'T'NESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date sat forth at the beginning of this Agreement. ATTEST: CITY OF SANTA ANA Maria D. Huizar David Cavazos Clerk of the Council City Manager APPROVED AS TO FORM (Signatures continue on followingpage) 42 r - DEVELOPER: Santa Ana Arts Collective, L.P., a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner 0 Kasey Burke, Vice President EXHIBITS A. Legal Description B. Affordability Restrictions on Transfer of Property C. Inclusionary Housing Deed of Trust D. Inclusionary Housing Promissory Note E. CDBG Deed of Trust F. CDBG Promissory Note G. Project Budget H. Scope of Work / Schedule of Performance I. Form of Residual Receipts Report 43 25B -49 _U 1111 A. Legal Description B. Affordability Restrictions C. Inclusionary Deed of Trust D. Inclusionary Promissory Note E. CDBG Deed of Trust F. CDBG Deed of Trust G. Project Budget H. Scope of Work I. Schedule of Performance J. Form of Residual Receipt Report 25B -50 Exhibit A Legal Description 1666 N. Main Street, Santa Ana, CA PARCEL A: THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE LAND ALLOCATED TO JACOB ROSS IN DECREE OF PARTITION OF THAT RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK "B" OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 12, BEING ALSO THE INTERSECTION OF THE CENTER LINES OF SEVENTEENTH STREET AND MAIN STREET AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 11 PAGE 18 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, NORTH 89° 56' 40" WEST 289.89 FEET; THENCE SOUTH 00 16' 25" WEST 230.00 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, SOUTH 89° 5640" EAST 289.78 FEET TO THE EASTERLY LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID EASTERLY LINE NORTH 00 1640" EAST 230.00 FEET TO THE POINT OF BEGINNING. EXCEPT THE NORTHERLY 40.00 FEET THEREOF. ALSO EXCEPT THE EASTERLY 35.00 FEET THEREOF. PARCEL B: NON- EXCLUSIVE EASEMENTS FOR VEHICLE INGRESS, EGRESS, PARKING AND INCIDENTAL PURPOSES, AS MORE PARTICULARLY SET FORTH IN THAT CERTAIN "DECLARATION OF EASEMENT FOR VEHICLE INGRESS, EGRESS AND PARKING" RECORDED OCTOBER 04, 2005 AS INSTRUMENT NO. 2005000786645 OF OFFICIAL RECORDS. APN: 005 - 153 -19 (Affects a portion of said land) 005- 153 -20 (Affects a portion of said land) 25B -51 Exhibit B FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M -26) P.O. Box 1988 Santa Ana, CA 92702 -1988 Attention: Housing Manager AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY {Address: 1666 N. Main Street, Santa Ana, CA) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions ") are entered into by and between Santa Ana Arts Collective, LP, a California limited partnership ( "Owner") and the City of Santa Ana, a charter city and municipal corporation (the "City "). RECITALS: A. Owner is purchasing that certain real property located at 1666 N. Main Street (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. The City is the recipient of Community Development Block Grant ( "CDBG ") funds from HUD pursuant to Tile I of the Housing and Community Development Act of 1974, as amended ( "Act ") and 24 CFR 570 ( "CDBG Regulations "). C. The City is authorized by the CDBG Regulations to expend funds to increase the supply of low- and moderate - income housing available at affordable housing costs. D. The Housing Opportunity Ordinance, Santa Ana Ordinance No. NS -2881, established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to Santa Ana Municipal Code ( "SAMC ") section 41- 1904(c), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the Inclusionary Housing Fund, as defined by SAMC section 41 -1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41 -1909. 25B -52 E. In order to utilize money in the Inclusionary Housing Fund, the City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all applications, the Developer's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. F. Developer is entering into this agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a sixty -four (64) unit multi - family residential housing development, with live /work units and a possible commercial are studio, as well as a community room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property "). The CDBG funds referenced herein shall assist in the rehabilitation only and the Inclusionary Housing funds will assist in the construction and soft costs of said Project. G. In furtherance of the Inclusionary Housing Program and CDBG guidelines, Developer has applied to the City for a loan with which to: 1. provide deeper affordability and construct the improvements to the Property, and 2. thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. H. The City, on certain terms and conditions, desires to make such loan ( "City Loan ") to Developer in order to make possible the rehabilitation and construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. L Owner and the City are concurrently entering into that certain CDBG and Inclusionary Housing Loan Agreement. The Loan Agreement, CDBG Deed of Trust , CDBG Promissory Note, Inclusionary Deed of Trust, and Inclusionary Promissory Note, dated concurrently herewith (collectively the "Loan Agreements ") are entered into for the purpose of providing for affordable very low income residential rental units in the City of Santa Ana pursuant to the CDBG and Inclusionary Funds regulations and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and 24 CFR 570. "Affordability Period" also referred to as "Term of Affordability ", shall be fifty -five (55) years from date of issuance of Certificate of Completion. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the U.S. Department of Housing and Urban Development (HUD). 25B -53 "Agreement" means this Affordability Restrictions on Transfer of Property between the City and the Owner affecting real property. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the CDBG Funds and Inclusionary Funds. "Building Permit" means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "CDBG Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit E to the Loan Agreement, to be executed by Owner pursuant to Section 5.13.2 in order to secure the CDBG Loan Note. "CDBG Loan" means the loan to be made by the City to Owner in the principal amount of Five Hundred Dollars ($500,000.00) in accordance with this Agreement. "City Project Manager" shall mean the City Manager and /or his /her designee. "CDBG Promissory Note" means that certain promissory note in the original principal amount of $500,000 in the form attached as Exhibit F to the Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the CDBG Loan through residual receipts as further described in the Promissory Note. "Close of Escrow" shall mean the date upon which the Loan Agreement and City Deed of Trust recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Owner" means Santa Ana Arts Collective, LP, a California limited partnership. "Owner's Representative" shall mean the Chief Executive Officer of the Managing General Partner of Owner or his/her designee. 25B -54 "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Event of Default" has the meaning set forth in Section 20.1. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "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). "Inclusionary Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit C to the Loan Agreement, to be executed by Owner pursuant to Section 5.13.2 in order to secure the Inclusionary Loan Note. "Inclusionary Loan" means the loan to be made by the City to Owner in the principal amount of One Million Eight Hundred Seventy Five Thousand Dollars ($1,8750,000.00) in accordance with this Agreement. "Inclusionary Promissory Note" means that certain promissory note in the original principal amount of $1,8750,000 in the form attached as Exhibit D to the Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the Inclusionary Loan through residual receipts as further described in the Promissory Note. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non- recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). 25B -55 "Indemnitees" has the meaning set forth in Section 18.2. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority . "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Agreement" means the Loan Agreement regarding the loan of CDBG and Inclusionary funds between the City and the Owner, and any attachments thereto. "Loan Documents" means, collectively, the Loan Agreement, the CDBG Promissory Note, the CDBG Deed of Trust, Inclusionary Promissory Note, Inclusionary Deed of Trust and this Agreement, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMI ". "Partnership Agreement" means the Amended and Restated Limited Partnership Agreement of Santa Ana Arts Collective, LP., dated as of December 1, 2015. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached as Exhibit G to the Loan Agreement, as modified from time to time in accordance with the Loan Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. 25B -56 "Property" means the property that is located at 1666 N. Main Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Restricted Units" means the units restricted as affordable by the City Documents. "Scope of Work" means the detailed statement of the work to be performed by Owner on and to the Property pursuant to this Agreement, which is attached as Exhibit H to the Loan Agreement. "Schedule of Performance" means the detailed schedule setting forth timeframes for certain tasks, which document is attached as Exhibit I to the Loan Agreement. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender, a construction loan in the approximate principal amount of $18,000,000 with a term of approximately two (2) years or a permanent loan(s) in the approximate principal amount of $3,788,911 with a term of approximately 18 years and an amortization period of 30 years. "Senior Loan Deed of Trust" means the first deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty -five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Very Low Income households, as provided in the Loan Agreement and these Restrictions 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. 25B -57 a. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty- five (55) years from the effective date of the issuance of the Certificate of Completion. b. The Project shall consist of approximately fifty -eight (58) units of which there will be twenty -six (26) one - bedroom units, fifteen (15) two- bedroom units and seventeen (17) three - bedroom units. There will be six (6) units with incomes at or below 30% AMI, twenty -four (24) units for households with incomes at or below 50% AMT; twenty -seven (27) units for households with incomes at or below 60% AMI; and the remaining unit will be reserved for the on -site manager. If entitlement changes the number of units, the City Project Manager must approve affordability mix. C. Affordable rents shall be governed as provided in the CDBG Regulations and Inclusionary Housing Funds Procedures. Rental increases shall be in conformance with federal and state law. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 3.2 Rent Increases A. On an annual basis, the City shall provide the Developer with the maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units for the Property. B. Owner, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by HUD. The City Manager shall notify Owner in writing of the adjusted allowable maximum incomes and rents. 4. Miscellaneous Provisions: A. Owner shall adopt and include as part of its Management Plan (described in subsection G below), written tenant selection policies and criteria for the Units, that meet the following requirements: (a) Are consistent with the purpose of providing housing for Very Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; (c) Give reasonable consideration to the housing needs of households that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); 25B -58 (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Owner, the City shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re- renting of any Restricted Units (24 CFR 92.351). B. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable HOME tenant -based assistance document. C. Any lease of any of the Units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "Owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; 25B -59 (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. D. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. E. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local code requirements and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted on the Property. F. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601 -20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. G. Not later than the closing for the construction loan for the Project, Owner shall submit to the City Project Manager a Management Plan in a form that is acceptable including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the City Project Manager not later than the time for the issuance of a certificate of occupancy for the Project. Owner shall manage the Restricted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the City Project Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent. The City Project Manager shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. (b) Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the issuance of a 25B -60 certificate of occupancy for the Project, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the City Project Manager. The budget and cash flow shall be in a form that is acceptable to the City Project Manager. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. H. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, Owner shall change the management agent or the practices complained of, upon receipt of written notice from the City Manager. The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (30) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. I. The covenants established in these Restrictions and any amendments hereto approved by the City, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. These Restrictions shall remain in effect for fifty -five (55) years. In its discretion, the City may defer repayment of the Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Restricted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. J. Owner shall not request disbursement of City funds until the funds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreements and these Restrictions [24 CFR 92.504 (c)(10)]. K. Owner shall prepare, maintain and submit to the City, as appropriate, the following records and reports in compliance with 24 CFR 92.504 (c) (12): a. Annual Reports. Owner shall file with the City an Annual Report (herein referred to as the "Annual Report") within one hundred fifty (150) days following the end of each calendar year, commencing the Calendar Year following the issuance of the Certificate of Completion. The Annual Report shall contain a certification by Owner as to such information as the City Project Manager may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 4.G. (c) of the this Agreement which shall include an audited financial statement for the previous calendar year that includes a balance sheet and a profit and loss statement indicating any surplus or deficit in operating accounts; a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual 25B -61 Budget and audited financial statement shall be prepared in accordance with generally accepted accounting practices. (2) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Owner has taken in order to maintain the Project in a safe and sanitary condition in accordance with applicable housing and building codes and the property standards set forth in 24 CFR 92.251. (3) The occupancy of the units indicating the income of each current resident and the current rents charged each resident and whether those rents include utilities, including records that demonstrate that the Project meets the requirements of the CDBG and Inclusionary Housing Program. (4) General management performance, including tenant relations and other relevant information. (5) Records that demonstrate that the units meet the affordability requirements of 24 CFR 92.252, for the required period of affordability. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the CDBG Deed of Trust and Inclusionary Deed of Trust, with a loss payable endorsement naming the City as a loss payee together with other approved lenders (as their interests may appear), with a 'Replacement Cost Endorsement' in amount sufficient to prevent Owner or City from becoming a co- insurer under the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. (7) Evidence of a currently paid liability insurance policy, naming the City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreements. (8) Termite reports pertaining to the Property every fifth (5a') year (9) Such other information as may be reasonably required by the City Manager or his/her designee. b. Records and Audits. Owner shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; (2) records, for each Restricted 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 24Section 29.253; 25B -62 (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 NSP funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority -owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (5) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CFR 92.351, if applicable; (6) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the date on which Owner obtained ownership of the Property; (7) records concerning lead -based paint in accordance with 24 CFR 92.355; (8) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (9) records of certifications of contractor qualifications as they relate to the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (10) any other reports issued by other monitoring agencies. C. All records pertaining to each calendar year of NSP funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). Owner shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, the Office of the Auditor General of HUD, and /or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. 25B -63 d. If so directed by the City or HUD upon termination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City or HUD, as depository. e. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, or HUD, on reasonable prior notice, for the purpose of examination or audit. f Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall reasonably cooperate with City in performing such audit. g. Owner shall permit the City to perform an Annual Physical Inspection of the Property with at least seven (7) days notice. Owner shall cooperate with this Inspection and shall take all steps necessary to quickly correct any code deficiencies identified during the Inspection. L. The City is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. M. The covenants and agreements contained herein shall run with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer ") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. N. The Loan Agreement and all of its attachments shall be enforceable by the City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City Note and the City Deed of Trust provide a means of enforcement by the City if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. 25B -64 IN WITNESS WHEREOF, the parties hereto have executed these Affordability Restrictions on Transfer of Property as of the date and year first stated above. CITY OF SANTA ANA David Cavazos City Manager APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Ryan O. Hodge Assistant City Attorney OWNER: Santa Ana Arts Collective, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, A California limited liability company, its general partner I� Kasey Burke, Vice President 25B -65 Exhibit C FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M -26) Santa Ana, California 92702 Attn: Housing Manager INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust ") made this day of February, 2016, by between Santa Ana Arts Collective, LP , a California limited partnership (the "Trustor "), AmeriNational Community Services, a California corporation (the "Trustee "), and the City of Santa Ana, a charter city and municipal corporation (the 'Beneficiary "). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly lmown as 1666 N. Main Street, 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 Inclusionary Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain CDBG and Inclusionary Program Loan Agreement entered into between the Truster and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Truster the right, prior to any default by Truster in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or 25B -66 buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of One Million Eight Hundred Seventy Five Thousand Dollars ($1,875,000.00) (the "Inclusionary Promissory Note "); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Truster contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This Deed of Trust is executed and delivered, along with the Inclusionary Promissory Note and the Loan Agreement, to benefit the Property. A copy of said Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement "). Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or Inclusionary Promissory Note secured by this Deed of Trust. 2. Truster's Estate. Truster is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place except that the City's Affordability Restrictions on Transfer of Property shall be subordinated to Trustor's Senior Loan for acquisition. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor malting 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 2 25B -67 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 Tmstor 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. Truster 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 Truster shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Truster 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 loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, 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. r - 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 Truster 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 Inclusionary 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. Ins en ction. 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 Truster shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 16. Severabilitv. In the event that any provision or clause of this Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the hrclusionary Promissory Note which can be given effect without the 4 25B -69 conflicting provision, and to this end the provisions of the Deed of Trust and the City Loan Note are declared to be severable. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the Inclusionary 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, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non- existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner ") of its rights upon a default by a general partner under the Trustor's Amended and Restated Limited Partnership Agreement (the "Partnership Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor pursuant to the right of first refusal or to the general partners of Truster pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, provided that after any such sale, transfer or other disposition an affiliate of the Trustor's limited partner is the managing member or general partner of such transferee limited partner. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the Inclusionary Promissory Note or the Agreement, 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 involve the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon 25B -70 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 seMc ., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Trustor's limited partner shall be deemed to be a cure by Trustor and shall be accepted or rejected on the same basis as if made or tendered by Trustor. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable 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 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) Truster pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the Inclusionary Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) 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 frill 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 host or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the hiclusionary 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 persor or persons will pay all costs of recordation, if any. 6 25B -71 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Truster nor any partner of Trustor shall have any personal liability under the Agreement, Inclusionary 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 Truster only to the extent of Trustor's interest in the Property. (Signatures on Following Page) 25B -72 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner 0 John M. Huskey, President 8 25B -73 Exhibit D INCLUSIONARY HOUSING FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1666 N. Main Street) $1,875,000.00 February , 2016 Santa Ana, California 1. Principal Amount of Loan FOR VALUE RECEIVED, Santa Ana Arts Collective, LP, a limited partnership c (`Borrower "), hereby promises to pay to the CITY OF SANTA ANA, a charter city and municipal corporation ( "City"), or order, a principal amount not to exceed ONE MILLION EIGHT HUNDRED SEVENTY FIVE THOUSAND DOLLARS ($1,875,000.00) or so much thereof as may be advanced by the City to the Borrower, due and payable with 3% interest by residual receipts over the fifty -five (55) year term, pursuant to the CDBG and Inclusionary Program Loan Agreement (said "Agreement') between Borrower and the City dated concurrently herewith, which are both incorporated herein by this reference. This loan is made pursuant to the "Housing Opportunity Ordinance In -Lieu Fee Program" or "In -Lieu Fees" with money funded through the Program as "Inclusionary Housing Funds ". Any capitalized tern not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to City hereunder is subject to the terms of said Agreement, the Affordability Restrictions on Transfer of Property, CDBG Deed of Trust, CDBG Promissory Note, hiclusionary Deed of Trust and this Note. Said documents are public records on file in the offices of the City, and the provisions of said documents are incorporated herein by this reference. This Note, said Agreement, the Affordability Restrictions on Transfer of Property, CDBG Promissory Note, CDBG Deed of Trust and the Inclusionary Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. This Note evidences the obligation of Borrower to the City for the repayment of the Inclusionary Loan of Inclusionary Funds attributable to the acquisition, adaptive reuse and construction of the Property, and related soft costs. This Note is payable at the principal office of City of Santa Ana — Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Att: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 25B -74 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: "Agreement" means the Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Inclusionary Housing Program, and the hnclusionary Funds. "Area Median Income" means the median income figures for Orange County as published by the U.S. Department of Housing and Urban Development (HUD). Also may be referred to as "AMI" herein. "Borrower" means Santa Ana Arts Collective, LP, a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. " Inclusionar o 'shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the hnclusionary Deed of Trust. "_City's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50 %) of the total Residual Receipts from the Property as further described in Section 5 hereof. "Closing Costs" shall mean: (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Inclusionary Housing Program" (Inclusionary) has the meaning set forth in the Recitals above. 25B -75 "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 and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts ") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Operating Expenses" shall mean the sum of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) a property management fee equal to 8% of gross rents; (iii) Owner Administration Fee of 5% of gross rents; (iv) deposits into required reserves; (v) any deferred developer fee; (vi) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms - length transactions for similar services in the Santa Ana, California area. 25B -76 (vii) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement "). "Inclusionary Deed of Trust" shall mean the hiclusionary Deed of Trust in favor of the City, securing the Inclusionary Loan, substantially in the form attached to the Agreement as Exhibit D, which is incorporated herein by this reference. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Low Income" means an adjusted income which does not exceed eighty percent (80 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Inclusionary Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. "Inclusionary Funds" shall mean the money provided under the Inclusionary Housing Program for the construction of the rental units hereunder. "Propert y' shall mean that property located at 1666 N. Main Street, Santa Ana, California. "Refinancine" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and /or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan, except for the payoff of the conventional lender's acquisition loan for the Property.. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty -five percent (35 %) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a 4 25B -77 sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale" shall not include any transaction not considered a "transfer' under Section 13. ( "Senior Loan" shall mean any senior loan made to Borrower, for payment of Acquisition and/or Rehabilitation Costs, and shall include any subsequent loan that refinances said Senior Loan. "Term" the term for repayment of this Note shall mean fifty -five (55) years from the date of recording of the Deed of Trust securing the Note. "Term of Affordability" the term of affordability shall be fifty -five (55) years. "Very Low hicome" means an adjusted income which does not exceed fifty percent (50 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement. 4. Operating Capital Improvement Loan. If the replacement reserve account ( "reserves ") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment/ Residual Receipts. a. Commencing on the date one hundred fifty (150) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter, the Borrower shall submit to the City an audited financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due. 25B -78 c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of principal. At least fifty percent (50 %) of the Residual Receipts shall remain with the Borrower, with all Residual Receipts remaining with Borrower to the extent the City Loan has been fully repaid. d. Borrower shall retain fifty percent of the Residual Receipts. The other fifty percent shall be divided with ten percent (10 %) to be applied to the CDBG Loan, forty percent (40 %) to be applied to the Inclusionary Loan, and fifty percent (50 %) to be applied to the HOME loan. As Borrower repays its loans, the payment percentage applied to the remaining loans shall increase. e. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the principal balance of the loan. 6. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note (other than refinancing of the conventional lender acquisition loan) not to exceed the outstanding balance of principal on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in frill the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the Refinancing Proceeds to the extent of the outstanding balance on this Note. At least fifty percent (50 %) of the Refinancing proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in full. 7. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the City from any Sale that occurs during the term of the City Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in fall; and next, the Borrower shall pay to the City the City's Percentage of the total Sale Proceeds, not to exceed the outstanding amount of principal due on this Note. At least fifty percent (50 %) of the Sale Proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. 25B -79 8. Accelerated Loan Pavment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in fall the City Loan, the City approves such sale and the purchaser assumes the balance of the City Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the City Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default (subject to any applicable notice and cure provisions by Borrower as to any other loan or loans by City to Borrower with respect to the Property; or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this City Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty -five (55) years. 10. Lawful Money. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charges. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal, due the City pursuant to this Note, and the balance, if any, to the payment of principal. b. If any payment is not received by the City within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4 %) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late r _ .I charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 12. Security This Note is secured by the recorded Deed of Trust. 13. Acceleration by Reason of Transfer or Financing. a. In order to induce City to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City 8 25B -81 may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan shall be repaid to the City at the time of each Refinancing or partial Refinancing. c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (and it shall not be deemed a Sale) (i) a transfer of a general partner's interest in Borrower when made in connection with the exercise by the Borrower's limited partner (the "Limited Partner ") of its rights upon a default by a general partner under the Borrower's partnership agreement (the "Partnership Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Borrower pursuant to the right of first refusal or to the general partners of Borrower pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 14. Event of Default. Subject to the provisions of Sections 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ( "Event of Default ") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after any applicable notice has been provided and the expiration of any applicable cure period therefore„ if any, provided therein. 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus 25B -82 four percent (4 %). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 16. Attorney Fees. If this City Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 17. Severabilitv. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non - recourse. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the City Loan or for any other amounts under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the City Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and acknowledged by Borrower and City that the Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. a 25B -83 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. C. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of fifteen (15 Business Days after such notice is received within which to cure the default prior to exercise of remedies by City under this Note and the Deed of Trust. f If a non - monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the City Loan in balance and rebuild the Property in a manner that provides adequate security to City for repayment of the City Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this 11 r - •- Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the City Loan in a manner that provides adequate security for repayment of the remaining balance of the City Loan. 23. Farce Mai eure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 24. Assignments. The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 12 25B -85 This City Promissory Note is hereby agreed to and executed on the date first set forth above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner Kasey Burke, Vice President r - 13 Exhibit E FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M -26) Santa Ana, California 92702 Attn: Housing Manager CDBG DEED OF TRUST AND ASSIGNMENT OF RENTS THIS CDBG DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust ") made this day of February, 2016, by between Santa Ana Arts Collective, LP , a California limited partnership (the "Truster "), AmeriNational Community Services, a California corporation (the "Trustee "), and the City of Santa Ana, a charter city and municipal corporation (the 'Beneficiary "). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly lmown as 1666 N. Main Street, 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 CDBG Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain CDBG and Inclusionary Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or I 25B -87 buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the salve are, or shall be 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 stuns evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of Five Hundred Thousand Dollars ($500,000.00) (the "CDBG Promissory Note "); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; 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 Agreement. This Deed of Trust is executed and delivered, along with the CDBG Promissory Note and the Loan Agreement, to benefit the Property. A copy of said Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or CDBG 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 rehabilitation of the Property. 3. Repayment of the Loan. Trastor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place except that the City's Affordability Restrictions on Transfer of Property shall be subordinated to Trustor's Senior Loan for acquisition. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor malting 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, Truster will promptly discharge any lien which has priority r - •• 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 forfeit-Lire of the Security or any part thereof. 6. Hazard Insurance. Truster will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Truster. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Truster 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 Truster in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, 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. 3 25B -89 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 CDBG 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 City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 16. Severabilitv. In the event that any provision or clause of this Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the CDBG Promissory Note which can be given effect without the conflicting 4 25B -90 provision, and to this end the provisions of the Deed of Trust and the City Loan Note are declared to be severable. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the CDBG 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, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Truster 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 Truster 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, Truster shall have a reasonable period to cure the defect so long as Truster 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 Truster of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non - existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Truster when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner ") of its rights upon a default by a general partner under the Truster's Amended and Restated Limited Partnership Agreement (the "Partnership Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Truster pursuant to the right of first refusal or to the general partners of Truster pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Truster, provided that after any such sale, transfer or other disposition an affiliate of the Trustor's limited partner is the managing member or general partner of such transferee limited partner. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the CDBG Promissory Note or the Agreement, 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 part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon 5 25B -91 and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof, (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Trustor's limited partner shall be deemed to be a cure by Truster and shall be accepted or rejected on the same basis as if made or tendered by Trustor. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Truster 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 surns which would be then due under this Deed of Trust and no acceleration under the CDBG Promissory Note has occurred; (b) Truster cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Truster pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Truster contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) 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 of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the CDBG 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. 25B -92 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, CDBG 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. (Signatures on Following Page) 7 25B -93 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner S John M. Huslcey, President 25B -94 Exhibit F CDBG FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1666 N. Main Street) $500,000.00 February _,2016 Santa Ana, California Principal Amount of Loan FOR VALUE RECEIVED, Santa Ana Arts Collective, LP, a limited partnership c ( "Borrower "), hereby promises to pay to the CITY OF SANTA ANA, a charter city and municipal corporation ( "City "), or order, a principal amount not to exceed FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) or so much thereof as may be advanced by the City to the Borrower, due and payable with 3% interest by residual receipts over the fifty -five (55) year term, pursuant to the CDBG and Inclusionary Program Loan Agreement (said "Agreement') between Borrower and the City dated concurrently herewith, which are both incorporated herein by this reference. This loan is made pursuant to the "Housing Opportunity Ordinance In -Lieu Fee Program" or "In -Lieu Fees" with money funded through the Program as "CDBG Funds ". Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to City hereunder is subject to the terms of said Agreement, the Affordability Restrictions on Transfer of Property, Inclusionary Deed of Trust, Inclusionary Promissory Note, CDBG Deed of Trust and this Note. Said documents are public records on file in the offices of the City, and the provisions of said documents are incorporated herein by this reference. This Note, said Agreement, the Affordability Restrictions on Transfer of Property, Inclusionary Promissory Note, CDBG Deed of Trust and the Inclusionary Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. This Note evidences the obligation of Borrower to the City for the repayment of the CDBG Loan of CDBG Funds attributable to the adaptive reuse and construction of the Property, and related soft costs. This Note is payable at the principal office of City of Santa Ana — Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Att: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 25B -95 2. Definitions. For the propose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "Agreement" means the Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Community Development Block Grant Program, and the CDBG Funds. "Area Median Income" means the median income figures for Orange County as published by the U.S. Department of Housing and Urban Development (HUD). Also may be referred to as "AMI" herein. "Borrower" means Santa Ana Arts Collective, LP, a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "CDBG Loan" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the CDBG Deed of Trust. "City's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50 %) of the total Residual Receipts from the Property as further described in Section 5 hereof. "Closing Costs" shall mean: G) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "CDBG Program" (CDBG) has the meaning set forth in the Recitals above. 2 25B -96 "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 and /or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts ") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Operating Expenses" shall mean the sum of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) a property management fee equal to 8% of gross rents; (iii) Owner Administration Fee of 5% of gross rents; (iv) deposits into required reserves; (v) any deferred developer fee; (vi) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms - length transactions for similar services in the Santa Ana, California area. 3 25B -97 (vii) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). "CDBG Deed of Trust" shall mean the CDBG Deed of Trust in favor of the City, securing the CDBG Loan, substantially in the form attached to the Agreement as Exhibit E, which is incorporated herein by this reference. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Low Income" means an adjusted income which does not exceed eighty percent (80 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "CDBG Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. "CDBG Funds" shall mean the money provided under the CDBG Program for the rehabilitation of the rental units hereunder. "Property" shall mean that property located at 1666 N. Main Street, Santa Ana, California. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and /or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan, except for the payoff of the conventional lender's acquisition loan for the Property.. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty -five percent (35 %) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a 4 r - •• sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale" shall not include any transaction not considered a "transfer' under Section 13. ( "Senior Loan" shall mean any senior loan made to Borrower, for payment of Acquisition and/or Rehabilitation Costs, and shall include any subsequent loan that refinances said Senior Loan. "Term" the term for repayment of this Note shall mean fifty -five (55) years from the date of recording of the Deed of Trust securing the Note. "Term of Affordability" the term of affordability shall be fifty -five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement. 4. OperatinE Capital Improvement Loan. If the replacement reserve account ( "reserves ") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Renavment/ Residual Receipts. a. Commencing on the date one hundred fifty (150) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150t" day of each Calendar Year thereafter the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter, the Borrower shall submit to the City an audited financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due. 25B -99 c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of principal. At least fifty percent (50 %) of the Residual Receipts shall remain with the Borrower, with all Residual Receipts remaining with Borrower to the extent the City Loan has been fully repaid. d. Borrower shall retain fifty percent of the Residual Receipts. The other fifty percent shall be divided with ten percent (10 %) to be applied to the CDBG Loan, forty percent (40 %) to be applied to the Inclusionary Loan, and fifty percent (50 %) to be applied to the HOME loan. As Borrower repays its loans, the payment percentage applied to the remaining loans shall increase. e. The Residual Receipts payment shall be made not later than one hundred fifty (15 0) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the principal balance of the loan. 6. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note (other than refinancing of the conventional lender acquisition loan) not to exceed the outstanding balance of principal on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the Refinancing Proceeds to the extent of the outstanding balance on this Note. At least fifty percent (50 %) of the Refinancing proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in full. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the City from any Sale that occurs during the term of the City Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the total Sale Proceeds, not to exceed the outstanding amount of principal due on this Note. At least fifty percent (50 %) of the Sale Proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. 25B -100 8. Accelerated Loan Payment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City Loan, the City approves such sale and the purchaser assumes the balance of the City Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the City Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default (subject to any applicable notice and cure provisions by Borrower as to any other loan or loans by City to Borrower with respect to the Property; or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this City Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty -five (55) years. 10. Lawful Monev. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charges. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal, due the City pursuant to this Note, and the balance, if any, to the payment of principal. b. If any payment is not received by the City within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4 %) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late 25B -101 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 Lentil paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 12. Securi This Note is secured by the recorded Deed of Trust. 13. Acceleration by Reason of Transfer or Financing. a. In order to induce City to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City 6 25B -102 may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan shall be repaid to the City at the time of each Refinancing or partial Refinancing. c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (and it shall not be deemed a Sale) (i) a transfer of a general partner's interest in Borrower when made in connection with the exercise by the Borrower's limited partner (the "Limited Partner ") of its rights upon a default by a general partner under the Borrower's partnership agreement (the "Partnership Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Borrower pursuant to the right of first refusal or to the general partners of Borrower pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 14. Event of Default. Subject to the provisions of Sections 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ( "Event of Default ") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after any applicable notice has been provided and the expiration of any applicable cure period therefore„ if any, provided therein. 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus 9 25B -103 four percent (4 %). No delay or omission on the part of the City in exercising any right wider this Note or under any of the other Loan Documents shall operate as a waiver of such right. 16. Attorney Fees. If this City Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 17. 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. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non - recourse. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the City Loan or for any other amounts under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the City Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and acknowledged by Borrower and City that the Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. 10 25B -104 b. The City shall give written notice of default to the Borrower specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the City to be reasonably necessary to correct the default). d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of fifteen (15 Business Days after such notice is received within which to cure the default prior to exercise of remedies by City under this Note and the Deed of Trust. f. If a non - monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (3 0) 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 (I80) days after the first notice of default is given. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the City Loan in balance and rebuild the Property in a manner that provides adequate security to City for repayment of the City Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this 11 25B -105 Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the City Loan in a manner that provides adequate security for repayment of the remaining balance of the City Loan. 23. Force Mai eure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 24. Assignments. The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 12 25B -106 This City Promissory Note is hereby agreed to and executed on the date first set forth above. W : i s ] :> I MAN � ] � AI a:7 Y SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner IC Kasey Burke, Vice President 13 25B -107 ExhibiL G 25B -108 Total Permanent Financing Costs 44,347 44,347 44,347 Subtotals Foreard 19,402,301 1,875,000 500,000 2,260,000 7,197,566 4,069,735 3,500,000 19,402,301 FECAL FM Lender Legal Paid by Applicant 20,000 80,000 80,000 Other: (Bond Counsel& Partnership Legal) 125,000 125,000 125,000 Total Attorney Costs 205'.00 205,000 2.5.00 Rent Reserves Rent Capitalized Rent Reserves Operating Reserve 204,936 204,936 204,936 Other:(Transitlon Reserve) Total Reserve Costs 204,936 204,936 M4,936 APPRAUAL Total Appraisal Costs 5,700 5,700 5,700 Total Contingency Cast 974,084 974,084 974,084 OTHER PRD7ECTW5TSr TC4C /CDIAC App/Allocation/Monitoring Fees 40,280 0,280 4,280 Envlmnmental Audit 5,600 5,600 5,600 Local Development Impact Fees Permit Processing Fees 1,340,951 1,340,951 1,340,951 Capital Fees Marketing 60,000 60,000 60,000 Furnishings 275'.00 275,000 275,000 Market Study 8,500 8,500 8,500 Acmunting/Reimbursables 117.00 117,000 117,000 Soft Cast Contingency 250,000 250,000 250,000 Other: Belocallon 784000 782,000 782,000 Other:(Pred... pment Loan) 522,100 522,100 522,100 Other:(CDIAC Oeposlts) Other ; (Reimbursable Expanses) 3,5.0 3,500 3,500 Other: (Utilltles) Other: (City Flamdrg Fees Other. p Total Other Casts 3,404,931 3,404,931 3,9U4,931 SUBTOTAL PROJECT COST 24,196,952 1,875,000 500,000 2,260,000 11,992,217 4,069,735 3,500,000 2Q19fi,952 DEVELOPER Com Developer O,crheed /ProfR 2,000,000 1,572,253 427,747 2,000,000 Consultant /Processing Agent Project Administatlon Broker Fees Paid to a Related Pact, Const. Oversight by Developer Othen(Specify) Total Developer Casts 2,000,000 1,572,253 427,747 2,000,000 TOTAL PROJECT COSTS 26,196,952 1,875,000 500,000 2,260,000 13,564,470 4,089,735 3,50,000 427,747 26,196,952 25B -109 EXHIBIT H SCOPE OF DEVELOPME NT The property address of the site subject to this agreement is 1666 North Main Street, at the signalized intersection of 17th Street and Main Street, in the Midtown Specific Plan Zoning District (SP -3). The development site consists of two parcels held as one, of 43,293 square feet total (or 1.00 acres). The development site is currently improved with a five story office building with extended one story footprint at ground- level, one level of subterranean parking, and approximately 0.5 acre of surface parking. The office building was built in 1968 and has 62,724 rentable square feet. In November 2014, the Santa Ana City Council approved an adaptive reuse ordinance, which provides alternative building and fire standards in order to convert non - residential buildings built before 1974 into dwelling units, guest rooms or joint living and work quarters. 1666 North Main Street qualifies for this ordinance because of the building's age, non - residential use, and location in the Midtown Specific Plan Zoning District. The development is a fifty -eight (58) unit affordable housing development that would adaptively reuse the five story office building and extended ground floor as forty -eight (48) residential units, and newly construct ten (10) additional residential lofts, townhomes, and flats on the office building's former surface parking area. A mix of twenty -six (26) 1- bedroom, fifteen (15) 2- bedroom, and seventeen (17) 3- bedroom units will be spread throughout the adaptively reused office building and ground -level new construction. Building heights range from two (2) stories in the former surface parking areas to five (5) stories in the adaptively reused building. An existing subterranean parking garage will be restriped for 90 parking spaces, including thirty -two (32) pairs of tandem parking spaces (or 64 total tandem spaces). Parking will be accessed via the existing drive aisle from North Sycamore Street to the west. The proposed development would be constructed to LEED Gold standards The 1968 office building is constructed of reinforced concrete panels with tinted window panels, in the international style of architecture, which has its roots in the modernist design movement of the twentieth century. The new development would preserve the former office building's clean, contemporary lines and add new, modern lofts and townhomes to complement the character of the office building and more broadly Midtown. To complement and sustain the proposed artist concept, Meta Housing Corporation has included approximately 5,677 square feet of community space distributed throughout the development. That space is proposed to be allocated to the following uses: a community art gallery, art garden, maker spaces, music room, rehearsal room, community room with community kitchen, computer room, property management office, services office, common laundry facility, a courtyard, and tot lot. The approximate 1300 square foot community art gallery, art garden, and maker spaces will be located on North Main Street. 25B -110 Exhibit I Proposed Development Schedule DATE Complete MILESTONE Site Control 1111/2016 Site Acquisition 1/2016 NEPA, Site Plan and Design Review Approval 112016 Pre - Commitment Letter for City of Santa Ana funds 3/212016 TCAC 9% Round 1 Application Due 3/2016 CA HCD AHSC Concept Application Submittal Due 4/2016 CA HCD AHSC Invitations to Full Submittal Announced 6/2016 CA HCD AHSC Full Submittal Due 8/2016 CA HCD AHSC Awards Announced 6/8/2016 TCAC 9% Round 1 Award Announcements 6/29/2016 TCAC 9% Round 2 Application Due 9/21/2016 TCAC 9% Round 2 Award Announcements 3/7/2017 Secure Permits and Construction Plans approval 3/21/2017 Close Construction Financings, Start Construction 11/2017 Commence Tenant Selection Process 5/2018 Complete Construction (15 Months) 7/2018 Complete Lease -up 11/2018 Permanent Financing Conversion 25B -111 EXHIBIT G FORM OF RESIDUAL RECEIPTS REPORT Community Redevelopment Agency of the City of Santa Ana Residual Receipts Report for the Year Ending Date Prepared Please complete the following information and execute the certification at the bottom of this form. Annual Project Revenue Please report Annual Project Revenue for the year ending on the following lines: Rent Payments (including Section 8 tenant assistance payments, if any) Interest Income (do not include interest income from replacement and operating reserves nor interest income on tenant security deposits) Additional Income (for example, vending machine income, tenant forfeited deposits, laundry income not paid to the residents' association) Total Annual Project Revenue (Add lines 1, 2, and 3) Operating Expenses Please report Operating Expenses incurred for the year ending on the following lines: Operating and Maintenance Expenses Utilities Property Management Expenses and On -Site Staff Payroll Administrative Expenses Property Taxes Insurance 25B -112 (1) $ (2) (3) $ (4) (5) $ (6) $ (7) $ (8) $ (9) $ (10) $ Other Expenses Please list these expenses: Total Annual Operating Expenses for the Housing Project (Add lines 5, 6, 7, 8, 9, 10, and 11) Net Operating Income (Subtract Line 12 from Line 4) Do not include expense unrelated to the operation of the Rental Portion of the Project, such as depreciation, amortization, accrued principal and interest expense on deferred payment debt, or capital expenditures. Additional Cash Flow Payments (11) $ (12) (13) $ Obligated First Mortgage Debt Service Payments (as approved by the Agency and (14) other parties that may have such approval rights) and Obligated Secondary Subordinate Debt Service Payments (as approved by the Agency and other parties that may have such approval rights) Scheduled Deposits to Reserves (as approved by the Agency) (15) Additional Payment Obligations (such as partnership management fees, deferred (16) developer fees, or repayments on loans to partners, as approved by the Agency to have priority over Residual Receipt Payment to the Agency) Total Additional Cash Flow Payments (Add lines 14, 15, and 16) (17) Residual Receipts for Year Ending (18) $ (Subtract Line 17 from Line 13) Percentage of Residual Receipts to be Paid to the Agency (as shown in the (19) % Promissory Note by and between the Agency and Borrower dated Amount Payable to the Agency (Multiply Line 18 by Line 19) (20) The amount payable to the Agency listed on Line 20 is subject to payment according to the terms of the Promissory Note by and between the Agency and Borrower dated . If Line 20 is $0.00 or negative, you owe nothing to the Agency this year. If Line 20 is a positive number, remit check payable to and attach to this report. 25B -113 25B -114 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED AGREEMENT WITH RICK ENGINEERING ❑ As Recommended FOR ON -CALL ENGINEERING SERVICES ❑ As Amended ❑ Ordinance on I" Reading (NON - GENERAL FUND) ❑ Ordinance on 2 "d Reading (STRATEGIC PLAN NO. 6, 1G) ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGEFiO RECOMMENDED ACTION Authorize the Executive Director of Public Works to terminate the agreement with VA Consulting, Inc., for on -call engineering services in an amount not to exceed $250,000. 2. Authorize the City Manager and Clerk of the Council to execute an on -call engineering services agreement with Rick Engineering for a two -year term beginning February 3, 2016, and expiring February 2, 2018, with provisions for up to two one -year renewal options exercisable by the City Manager and City Attorney, for a total not to exceed $250,000 over the life of the agreement, including any renewal periods, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION Staff previously solicited proposals for on -call engineering services to support City staff in the delivery of time- sensitive Capital Improvement Program projects, using a Request for Qualifications (RFQ) and Request for Proposals (RFP) process. As a result of that process, the Council approved ten on -call engineering services agreements on August 4, 2015. Two of the ten on -call agreements were awarded to Stantec Consulting Services ($250,000) and VA Consulting, Inc. (VA Consulting, $250,000). After Council approval, the City was informed that Stantec Consulting Services had purchased VA Consulting. Since Stantec Consulting Services was already awarded a $250,000 on -call contract, and the intent was to award only one contract to each of the firms, it is recommended that the agreement with VA Consulting be terminated (Exhibit 1). It is also recommended that a new agreement be awarded to the next firm on the value -based qualified list of proposals that was established during the RFQ /RFP process. Approval of this recommended action will allow the City to enter into an agreement with Rick Engineering (Exhibit 2), the next firm on the list of qualified proposals. Public Works will continue 25C -1 Agreement with Rick Engineering for On -Call Engineering Services February 2, 2016 Page 2 to use a task -order system to ensure that work is equitably allocated to all on -call engineering consultants. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy G (develop and implement the City's Capital Improvement Program in coordination with the Community Investment and Deferred Maintenance Plans). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT On -call agreements are utilized based on the City's approved Capital Improvement Program budgets. Funding will be verified by Finance & Management Services for each task order for this work during Fiscal Years 2015 -16, 2016 -17, 2017 -18, 2018 -19, and 2019 -20, as needed, prior to issuance of each notice to proceed. The fiscal impact was previously approved by Council on August 4, 2015, when the original ten on -call engineering consulting agreements were authorized for execution. Since the Rick Engineering agreement replaces the one with VA Consulting, there is no additional impact associated with this Council Action. Frpd Mousavipour Executive Director Public Works Agency FM(EWG /MS Exhibits: 1. Draft Letter to VA Consulting 2. Agreement —Rick Engineering APPROVED AS TO FUNDS & ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25C -2 MAYOR Miguel A. Pulido MAYOR PRO TEM Vincent F. Sarmiento COUNCILMEMBERS Angelica Amezcua P. David Benavides Michele Martinez Roman Rayne Sal Tinajero February 3, 2016 Max P. Vahid, PE President and CEO VA Consulting, hie. 46 Discovery, Suite 250 Irvine, CA 92618 CITY OF SANTA ANA 20 Civic Center Plaza • P.O. Box 1988 M -43 Santa Ana, California 92702 (714) 647.5619 www.santa- ane.org CITY MANAGER David Cavazos CITY ATTORNEY Sonia R. Carvalho CLERK OF THE COUNCIL Maria D. Huizar ''&n A O d`rg. lQ e Subject: On -Call Engineering Services Agreement & Recent Merger with Stantec Consulting Services Dear Mr. Vahid; We received your letter indicating your company's merger with Stantec Consulting Services. Following receipt of this letter, we contacted you to inquire if VA Consulting, Inc. could continue to exist as a firm for any period of time. We appreciate your quick confirmation that VA Consulting, hie. has already merged with Stantec Consulting Services such that it is no longer possible for the City to conduct business directly with VA Consulting, Inc. for on -call engineering services. The City's intent has been to award only one $250,000 contract with each of the ten on -call engineering services companies. With the merger, VA Consulting has now become Stantec Consulting Services and the City intends to award only the original contract with Stantec Consulting Services. This letter serves as notice that the City is terminating VA Consulting, Inc.'s previously executed agreement for on -call engineering services, effective thirty (30) days following the date of this letter. We appreciate your team's qualifications and responsiveness to the RFQ /RFP processes and look forward to working with Stantec Consulting Services for potential on -call engineering services work. Sincerely, Fred Mousavipour Executive Director Public Works Agency c: Stantec Consulting Services SANTA ANA CITY COUNCIL Miguel A, Pulled Vincent F Sarmiento Michele Martinez Angelica Amezcua P, David Benavides Roman Rayne Sal Tinajero Mayor Mayor Pro Tom, Ward 1 Ward 2 Ward 3 Ward 4 Ward 5 Ward 6 mpulldoAssnta-ana oro ysarnl entonsanta -ana ora mmanlneznsanta` ana or 3amezcua(oTaanta -ana ore dbenayldes(tlisanta- ana.orn neyna(dsenta -mra om snraiercidsanta -ana ore �, ' a 25C -4 CONSULTANT AGREEMENT CITY OF SANTA ANA THIS AGREEMENT is made and entered into this 3rd day of February 2016, by and between Rick Engineering, (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: On -Call Engineering Services to provide engineering services on an as- needed basis. Engineering services may include but are not limited to, civil engineering, electrical engineering, traffic engineering, geotechnical, land /property surveying, structural, storm drain, water or sewer line - related engineering, architecture and landscaping design services and grant writing services. Environmental and /or planning support services may also be requested. Prior to issuing a Task Order, the City may request a detailed Scope of Work, for a specific project/task. If requested, the consultant would provide a task proposal, budget and schedule for the Task Order. From this, the City may choose which consultant to assign the project/task to pursuant to this Agreement. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. The total sum to be expended under this Agreement shall not exceed Two Hundred Fifty Thousand Dollars ($250,000) over the entire life of the Agreement, including any renewal period(s). b. Payment by City shall be made within 45 days (forty -five) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. Exhibit 2 25C -5 Pagel C. Invoices should be submitted on the 15a' of each month and shall include the following information at a minimum: i. Consultant's invoice number and City's agreement number ii. Beginning and ending dates for services iii. City Project and /or Task Order number and /or name (if applicable) iv. Work site address /location (if applicable) V. Tasks or deliverables completed, and percentage ( %) of total services completed. vi. Remaining Overall and Task Order budget available 3. TERM This Agreement shall commence on the date first written above for a two (2) year term with the option for the City to grant up to two one -year renewal options exercisable by the City Manager and the City Attorney, unless terminated earlier in accordance with Section 15, below. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non - exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ( "Documents & Data "). Consultant shall require all subcontractors to agree in writing that City is granted a non- exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection 25C -6 Page 12 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, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insured's provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $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 by the City. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with a fully executed additional insured endorsement. f If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 25C -7 Page 13 7. INDEMNIFICATION To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively, the "indemnified parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a claim; collectively, "claims "), to any work performed or services provided under this Agreement arising out of, relating to or pertaining to the negligence, recklessness or willful misconduct of Consultant, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the indemnified parties from any claim arising from the sole negligence or willful misconduct of the indemnified parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 9. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be 25^ -8 Page 14 disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified in Certifications, Exhibit C, attached hereto and incorporated in this Agreement by reference. 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 fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax: 714- 647 -6956 With courtesy copies to: Fred Mousavipour, Executive Director of Public Works Agency City of Santa Ana 20 Civic Center Plaza (M -21) P.O. Box 1988 Santa Ana, California 92702 Fax: 714- 647 -5635 Sonia R. Carvalho, City Attorney City Attorney's Office City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax: 714- 647 -6515 250-9 Page 15 To Consultant: Barry J. Cowan, PE Principal -in- Charge, Contract Manager Rick Engineering Company 2 South Pointe Drive, Suite 275 Lake Forest, CA 92630 Fax: 949 -588 -80709 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 fax, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or 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 is not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written Page 16 25C -10 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(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by 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 and as further specified in Certifications, Exhibit C, attached hereto and incorporated in this Agreement by reference. 17. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 18. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 19. MISCELLANEOUS PROVISIONS a. Additional provisions, if any are identified as Additional Provisions, Exhibit D, attached hereto and incorporated into this Agreement by Page 17 25C -11 reference. b. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney and vat C of sistant City Attorne RECOMMENDED FOR APPROVAL: FRED MOUSAVIPOUR Executive Director Public Works Agency 25C -12 CITY OF SANTA ANA David Cavazos City Manager CONSULTANT: (name) (title) Tax ID# EXHIBIT A SCOPE OF SERVICES 25C -13 EXHIBIT A SCOPE OF SERVICES CITY OF SANTA ANA ON -CALL ENGINEERING SERVICES I. DESCRIPTION OF WORK The City of Santa Ana (City) solicited proposals from professional consulting firms (Consultant) to provide engineering services on an on -call, as- needed basis. Engineering services may include civil engineering, electrical engineering, traffic engineering, geotechnical, land /property surveying, structural, storm drain, water or sewer line - related engineering, architecture and landscaping design services and grant writing services. Environmental and /or planning support services may also be requested. The City may need consultant services for survey, mapping and legal description preparation, construction management, staking and inspection or occasionally request mechanical, electrical and /or structural services. The work, in general, consists of general engineering design projects on arterial and local streets, bike paths, and public parks, citywide. The types of work efforts may include: Underground utility design /modifications; sidewalks, bike paths, curb and gutter replacement; slurry seal of residential streets; repair and overlay of asphalt concrete and /or PCC streets; signing, striping, neighborhood traffic studies, traffic signal modifications; landscaping and irrigation systems; park and recreational design, grant application writing, building or facility work, other broader studies, and other related projects as required. A more detailed Scope of Work will be provided when /if a specific project or Task Order proposal is requested of a consultant. Funding sources will not include any state or federal fundine. Projects for each project/task order shall generally include local funds. Each project /task order assignment shall comply with any and all agency funding requirements. The Sample Task Order was submitted with the proposal inclusive of the hours, hourly rate and totals in Attachment C for the qualifications and value -based RFP . Note, state prevailing wage requirements shall apply to work as required, and including but not limited to, survey and materials testing work, and per the below link: http://www.dir.ca.aov/public-worl,s/publieworks.html) Consultants and subconsultants completing any element of or type of work within projects /task orders that is subject to compliance monitoring and enforcement by the State of California Department of Industrial Relations, per Section 1771.4.a.1., shall inform themselves fully of conditions relating to construction and labor law under which any work will be performed. Any consulting contract entered into pursuant to this notice shall incorporate the provisions of the California State Labor Code wherever they may apply and all fees shall be inclusive of or exceed these requirements. City of Santa Ana Scope of Work Page 1 25C -14 The Consultant shall be able to assist the City through this contract to provide the necessary services. The Consultant shall utilize in -house staff and /or sub - consultants to complete the assignments to meet the City standards. For specialized work for which the prime consultant shall require a sub - consultant, the prime consultant shall serve as an administrative liaison between the City and the sub - consultant. The prime Consultant mark -up for sub - consultants shall not exceed 10 %. II. PROPOSED SCOPE OF SERVICES In general, the Consultant shall perform above noted engineering design services resulting in contract documents (plans, specifications and cost estimates "PS &E ") for various projects on an as- needed basis. However, work tasks may include studies or a variety of engineering or other tasks. If requested by the City, the Consultant shall provide a Work Plan which includes a detailed schedule of the assigned project prior to the issuance of Notice to Proceed of that particular project and /or Task Order. Specific Task Orders with Notices to Proceed ( "NTPs ") will be provided for project(s) at the discretion of the City. Work required per Task Order shall comply with the Scope of Services and additional provisions in each Task Order and this agreement. The Consultant shall also provide all field survey work required as appropriate and shall have the necessary experience and required civil, traffic, electrical, structural, geotechnical, surveying, landscape architect and architectural licenses for those in responsible- charge of the work being completed. The Consultant's services for PS &E engineering project preparation shall include, but not be limited to, the following: 1. Research existing records of utility companies and agencies and coordinate the proposed improvements with existing field conditions. 2. Provide all field survey and topographic work necessary to complete the design effort. Design level survey and base mapping of the project site shall be prepared in US Customary English units by a California licensed Land Surveyor in accordance with the City guidelines and in Microstation V8i Computer Aided Design and Drafting (CADD) format. The horizontal datum shall be NAD 83 and the vertical datum shall be NAVD 88. All survey field notes shall be on forms provided by the City, shall be neatly completed in pencil, and shall become property of the City upon completion of the project. Informal field investigations including marking of removal areas may be required for some of the sidewalk, curb and gutter, and pavement replacement projects. 3. Complete the design of projects including plans, specifications, and engineer's construction cost estimate. The Consultant shall contact manufacturers and /or contractors to verify the engineer's estimate prior to submitting to the City. Specifications shall be prepared in Microsoft Word and an electronic copy of the final version shall be furnished to the City. The City will provide the specification boiler plate to the Consultant. 4. If requested, all preliminary and bid sets of plans shall be plotted on bond or velum using the Microstation V8i CADD program. All drawings shall be completed per the City of Santa Ana CADD Standards. For interim submittals, the City may opt to receive only PDF versions of the plans for reviewing purposes. If so, the Consultant team will provided plans and /or specifications accordingly. City of Santa Ana Scope of Work Page 2 25C -15 5. All original plan sheets, the title sheet of the specifications, calculations, and reports shall be signed and stamped by the Consultant's licensed professional engineer responsible /in- charge of the project. These signed originals shall then become the property of the City. 6. If a part of the on -call project scope, the Consultant shall provide support services during the bidding and construction phases of the project on an as needed basis, including, but not limited to: A. The Consultant shall respond to bidder inquiries during the bidding process, including preparation of any addenda. Following award of the construction contract, the Consultant shall attend the pre - construction meeting. B. The Consultant shall review and approve all submittals and shop plan drawings required supporting the construction contract. The Consultant shall complete shop drawings reviews within two (2) weeks of receipt. Contract Change Order reviews shall be completed within two (2) working days of receipt. C. The Consultant shall respond to written Requests for Information (RFI) to provide clarification or resolve discrepancies in the contract documents. Responses shall be completed within three (3) working days. D. The Consultant shall provide periodic field reviews and bring to the attention of the City of Santa Ana any defects or deficiencies in the work by the construction contractor which the Consultant may observe. The Consultant shall have no authority to issue instruction on behalf of the City of Santa Ana, or to deputize another to do so. 7. If included in the on -call project scope, upon completion of construction, the Consultant shall prepare as- builts and submit them to the City. The Consultant shall incorporate all changes to the plans electronically with all necessary revision notations. Once plans have been updated, a signed set of as-built mylars shall be submitted to the City with an electronic copy (in Microstation V8i CADD and pdf formats) of the final as-built drawings via CD or e -mail. 8. If included in the on -call project scope, the Consultant shall monitor the project progress, maintain project files, and control the quality of the work performed by in -house staff and /or sub - consultants. Incomplete (not meeting targeted completion) or poor quality work will not be accepted. The Consultant shall revise the documents within a revised schedule set by the City, which may require overtime. No additional compensation necessary for the consultant to complete this work to the satisfaction of the City shall be approved by the City for the required revisions. It is the responsibility of the Consultant to produce a professional -level quality of work product. 9. If included in the on -call project scope, attend meetings with the City staff as required. 10. If included in the on -call project scope, the Consultant shall coordinate plan check, design topics, permits and any other issues with the City, other Agencies, and all utility companies as required. At the direction of the City, the Consultant shall be the liaison with affected agencies. 11. If included in the on -call project scope, the Consultant shall be responsible for reviewing and approving addenda and clarifications to plans and specifications. City of Santa Ana Scope of Work Page 3 25C -16 III. GENERAL REQUIREMENTS 1. All work shall be performed in conformance with the latest City of Santa Ana policies, procedures and standards, and applicable, regulatory, state and federal requirements, where they may also apply despite the focus on local funding. 2. Consultant shall carry out the instructions received from the City of Santa Ana and shall cooperate with the City of Santa Ana and any other involved agencies. 3. The Consultant shall have complete responsibility for the accuracy and completeness of all documents and plans prepared and shall check all such materials accordingly. The plans will be reviewed by the City of Santa Ana for conformity with the requirements of the Agreement. Reviews by the City of Santa Ana do NOT include detailed review or checking of design or the accuracy with which such designs are depicted in the documents and the plans. The responsibility for accuracy and completeness of such items remains solely that of Consultant. 4. The documents and plans furnished under the Agreement shall be of a quality acceptable to the City of Santa Ana. The criteria for acceptance shall be a product of neat appearance, well organized, technically and grammatically correct, checked, and dated and having the maker and checker identified. 5. The Consultant shall have quality control procedures in effect during the entire time work is being performed under the Agreement. The quality control procedures shall establish a process which includes checking processes for PS &E preparation, an independent constructability review, correcting and back checking procedures, and all job related correspondence and memoranda dated and received by affected persons and then bound in appropriate job files. The City of Santa Ana reserves the right to request proof of said documentation. 6. The Consultant's work and all records shall be subject to inspections by representatives of the City of Santa Ana and any funding agency requirements or audits if requested. Consultant certifies that it shall comply with the following regulations where applicable or others required by State or Federal Law, including, but not limited to the following: a. Audit Records - With respect to all matters covered by this agreement all records shall be made available for audit and inspection by the City, the grant agency and /or their duly authorized representatives for a period of four (4) years from the termination of this Agreement. For a period of three years after final delivery hereunder or until all claims related to this Agreement are finally settled, whichever is later, Consultant shall preserve and maintain all documents, papers and records relevant to the services provided in accordance with this Agreement, including the Attachments hereto. For the same time period, Consultant shall make said documents, papers and records available to City and /or any other agency from which City received additional grant funds or their duly authorized representative(s), for examination, copying, or mechanical reproduction on or off the premises of Consultant, upon request during usual working hours. City of Santa Ana Scope of Work Page 4 25C -17 b. Information - Consultant shall provide to City all records and information requested by City for inclusion in quarterly reports and such other reports or records as City may be required to provide to the agency from which City received grant funds or other persons or agencies. d. Americans with Disabilities Act of 1990 - (ADA) Consultant must comply with all requirements of the Americans with Disabilities Act of 1990 (ADA), as applicable and the related guidelines that may be more recent. e. Political Activity - None of the funds, materials, property, or services provided directly or indirectly under this agreement shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office, or otherwise in violation of the provisions of the "Hatch Act ". Civil Rights Compliance and Notification of Findings - Consultant, and all its contractors (or sub - recipients) will comply, with the nondiscrimination requirements of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 USC 3789 (d), or Victims of Crime Act (as appropriate); Title VI of the Civil Rights Act of 1964, as amended; Section 504 of the Rehabilitation Act of 1964, as amended; Subtitle A, Title II of the Americans with Disabilities Act (ADA) (1990); Title IX of the Education Amendments of 1972; the Age Discrimination Act of 1975; Department of Justice Non - Discrimination Regulations, 28 CFR Part 42, Subparts C, D, E, and G; and Department of Justice regulations on disability discrimination, 28 CFR Part 35 and 39. In the event a Federal or State court, Federal or State administrative agency, or the Consultant makes a finding of discrimination after a due process hearing on the grounds of race, color, religion, national origin, sex, or disability against a recipient of funds, the Consultant will forward a copy of the findings to the City which will, in turn, submit the findings to the Office of Civil Rights, Office of Justice Programs, U.S. Department of Justice. g. Equal Employment Opportunity - Consultant, and all its contractors (or sub - recipients) will comply, with all requirements of the Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60), as applicable. h. Patent - Consultant agrees that the funding agency shall have the authority to seek patent rights for any process, product, invention or discovery developed and paid for with funding through this Agreement. n. Copyright - Consultant may copyright any books, publications or other copyrightable materials developed in the course of or under this Agreement. However, the City reserves a royalty -free, non - exclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use the above items as deemed necessary for the City's purpose: i. the copyright in any work developed through this Agreement; and any rights of copyright to which the subcontractor purchases ownership with support through any grants if utilized. The City's rights identified above must be conveyed to the City of Santa Ana Scope of Work Page 5 25C -18 publisher and the language of the publisher's release form must ensure the preservation of these rights. IV. CITY RESPONSIBILITIES The City will provide the following: • All plan check coordination within the City • Sample boiler plate specifications to be utilized • Sample plans & City of Santa Ana's CADD Standards • Electronic files for title sheets and sheet borders City of Santa Ana Scope of Work Page 6 25C -19 ATTACHMENT C Sample Task Order CITY OF SANTA ANA ON -CALL ENGINEERING SERVICES As part of their proposal in response to RFP 14 -0378, the Consultant provided a Sample Task Order scope of work. This Sample Task Order included the following to provide a privacy wall design, minimum level of geotechnical /soils report, survey work, plans, specifications, and estimates: 1. Hours by staffing level & category (provided in the Excel Spreadsheet* provided), 2. Total Fee (in the Excel Spreadsheet provided), 3. Most responsive schedule deemed feasible, 4. As part of this Sample Task Order, a narrative scope of work was also provided with the following subtasks: • Project Kick - off /Meetings • Survey • Geotechnical Materials Testing & Soils Report • Privacy Wall Design Plans • Specifications • Engineer's Estimate • As -Built Plans The sample wall length was for an 800 LF for a privacy wall height varying from 10 -16 feet of exposed height where private property (homes) would abut the one side of the wall and public right -of -way would abut the other side of the wall. In a separate one -page narrative scope of work and project approach was provided for all tasks necessary to provide this privacy wall Sample PS &E Task Order project. Any additional standard plans proposed to be used for this design or other approaches necessary to address the parameters indicated herein were also included. For the plan and profile sheets, inclusive of any detail sheets /notes and the scale shall be at 20 -scale and conform to all requirements detailed in this RFP, the City's Standard plans and /or other recommended standard plans that the consultant may recommend. *Note: Prevailing wages may apply to this work. City of Santa Ana Scope of Work Page 7 25C -20 EXHIBIT B FEE PROPOSAL, including hourly rates (from separately sealed envelope included with Consultant Proposal) W. Attachment C Information 25C -21 UNDERSTANDING OF NEED SAMPLE TASK ORDER NO. 1 Between City of Santa Ana and Rick Engineering Company (RICK) PROJECT: PRIVACY WALL P.S. &E. GENERAL DESCIPTION OF WORK The work entails the preparation of plans, specifications, and estimates (PS &E) for the construction of a privacy wall on Avenue A between Street A and Street B within the City of Santa Ana for an approximate length of 800 If. The privacy wall height will be between 10' and 16' of exposed height, although we recommend that the exposed height be limited to 15' -6" whereas a standard Caltrans Masonry Block Wall (1315 -1, Trench Footing, and related std. B15 details) can be used, eliminating the need for special structural engineering calculations for a design cost savings. It is anticipated that the screen wall will provide rear -yard screening for thirteen (13) residences whose access is from Street C. Even though the screen wall will be located within the public right of way, it is anticipated that the construction of the screen wall will impact the private properties. SCOPE OF WORK 1. Project Kick -off, Meetings, and Coordination: RICK will prepare Kick -off meeting agenda, attend /manage kick -off meeting and follow up with meeting minutes. We propose to have monthly Project Development Team (PDT) meetings for status and coordination. RICK will prepare agendas and following meeting minutes of each meeting. Minutes will include action items with responsible party and date due. Included is on -going coordination with City project manager and staff, and PDT. Included is initial site reconnaissance. 2. Survey: RICK will provide a topographical survey and right way survey. Survey will include topographical features such as fences, storage sheds, curb, gutter, sidewalks, irrigation facilities, trees, property lines, above grade utility appurtenances. Ground contours will be generated at 1' contour interval for a scale of 1 "20'. It is assumed that the City will provide letters /authorization from property owners for surveyor access to rear yards. 3. Utility Coordination: We will collect utility record drawings from utility companies /agencies, such as City, County, SCE, Gas Company, and telecom companies. A log will be created that tracks utility record contact information, date of request of asbuilts, date of receipt, and project correspondence with utility. The acquired information will be plotted in a Microstation V8 file for incorporation into the base map. At each level of plan submittal listed below, our progress plans set will be provided to the affected utility companies /agencies to keep them abreast of project progress. 4. Base Map: Prepare a base map in Microstation V8 format that includes topographical survey information, right of way, property lines, and found utility information. Base map will include property title information, such as APN numbers, legal description (mapping lot numbers), and address. Base map will be used as the background to the screen wall plans. 5. Geotechnical Materials Testing and Soils Report: A report with proper testing will be performed to check for ground water elevation, soils bearing capacity, etc. to verify that the Caltrans standard screen wall will suffice without any special calculations. Structural calculations, if needed, are not included. Two geotechnical borings are included within the public right of way on the approximate screen wall alignment. 6. Privacy Wall Design Plans: Prepare detailed construction plans for the privacy wall at a scale of 1 " =20' utilizing the City's standard sheet border with appropriate approval signatures, notes, and details. It is anticipated that the plans will include a title sheet, notes, typical section and detail sheet, and two (2) plan and profile sheets. Profile will included top of wall and top of footing profiles. Plan view will depict screen wall horizontal location information, removals, relocations, avoidance, and base map data. We propose to submit plans at the 35 %, 85 %, 100% and final levels of completion. Statement of Qualifications to Provide On -Call En Ineering Services for the City of Santa Ana C -22 7. Legal Descriptions and Plats: Included are legal descriptions and plats for Temporary Construction Easements and contractor access easement for each parcel (13 separate properties included). The temporary construction easement plats and legal descriptions will be utilized by the City for work on the private properties. Our work does not include property owner coordination, negotiation nor acquisition services. Included in this item is the preparation of individual property owner (8 Y" x 12" size) exhibits that show the work to be performed on the private property and the impact to their property, such as fence removals, reconstruction of side yard fencing, storage sheds, shade structures, etc. 8. Specifications: RICK will prepare technical specifications and special provisions as required to supplement the 2012 Edition of the Green Book. It is assumed that the City of Santa Ana will provide a boiler plate specification package as a guideline. The specifications will set forth the method of installation and quality standards for materials and workmanship for the finished product. A Schedule of Bid Items will be prepared consistent with plans. 9. Engineer's Estimate: An Engineer's Estimate will be prepared. The unit prices will be based on unit contractor prices provided by the City for recent projects, the latest Caltrans Construction Cost Data for projects of similar magnitude, and /or other in -house sources we have on record from recent projects. 10. As -Built Plans: As builts will be prepared in the microstation V8 files based on provided contractor mark -ups, known to the engineer of record, RFI's, and construction changes. Deliverable will be mylars of the project plans and an electronic copy of the project plans in microstation V8 following the City of Santa Ana's CAD standards. Statement of Qualifications to Provide On -Call Eng2sic S230s for the City of Santa Ana Rlck Englneering Company Sample Task Order (Excel Spreadsheet) Description of Consultant Hours Hourly Rate Total Deliverables, Test or Services Project Kick - off /Meetings Principal Engineer 24 $ 210 $ 5,040 Registered Engineer 18 $ 170 $ 3,060 Project Manager /Prof Coordinator $ 155 $ - Assistant Level Design Engineer 6 $ 125 $ 750 Task Total 125 $ $ 8,850 Survey Three person survey crew* $ - Two person survey crew* 8 $ 274 $ 2,192 Survey Crew* (Intl Field /Office, Avg Rate) 16 $ 145 $ 2,320 Mapping (base map, plats /legals, 13 ea) 150 $ 155 $ 23,250 Task Total $ 27,762 Geotechnical & Soils Report Materials Testing* 10 $ 5,500 Geotechnical Engineer (Licensed) 2 $ 260 $ 520 Assistant Geotechnical Engineer 20 $ 155 $ 3,100 Admin /Typist 4 $ 80 $ 320 Task Total - $ 9,440 Privacv Wall DesianlCADD Plans Principal Engineer 10 $ 210 $ 2,100 Registered Engineer 24 $ 170 $ 4,080 Project Manager /Proj Coordinator $ 155 $ - Assistant Level Design Engineer 110 $ 125 $ 13,750 CADD person $ 105 $ - Admin /Typist $ 60 $ - Task Total $ 19,930 Specifications Principal Engineer 4 $ 210 $ 840 Registered Engineer 12 $ 170 $ 2,040 25C -24 Project Manager /Proj Coordinator $ 155 $ Assistant Level Design Engineer 16 $ 125 $ 2,000 Draftsperson $ 105 $ - Admin /Typist 12 $ 60 $ 720 Task Total - Assistant Level Design Engineer $ 5,600 Enaineer's Estimate Principal Engineer 1 $ 210 $ 210 Registered Engineer 2 $ 170 $ 340 Project Manager /Proj Coordinator $ 155 $ - Assistant Level Design Engineer 16 $ 125 $ 2,000 Draftsperson $ 105 $ - Admin /Typist $ 60 $ - Task Total $ 2,550 As-Built Plans Principal Engineer 1 $ 210 $ 210 Registered Engineer 2 $ 170 $ 340 Project Manager /Proj Coordinator $ 155 $ - Assistant Level Design Engineer 6 $ 125 $ 750 Draftsperson $ 105 $ - Admin /Typist $ 60 $ Task Total $ 1,300 Total 416 $ 4,369 $ 57,732 *Some positions /work tasks will be subject to prevailing wages. Note: The listing of the specific positions above is not intended to mean that each position listed will necessarily have hours included in the above. The positions simply represent the types of positions that might be utilized for each subtask to streamline the City's review of this information. Please utilize the categories listed to the extent possible. 25C -25 W J D r) LLI 2 U Statement of Qualifications to Provide On -Call En sneering Services for the City of Santa Ana 14 25C -26 Y dF dLL Wa'S W �o ry N 0 v o W LU 0 p 9 o o l p 'o Q z O yj o W Y \ m \ \ m ry ;e a E m e S ii D a° F_a E E o a E c E E _ w V N 'a a E r o 'v '$ E v 1= a C7 2 G tl r E z a a r n d p `c a v a a s m S � [u iz'^ Statement of Qualifications to Provide On -Call En sneering Services for the City of Santa Ana 14 25C -26 NCM Engineering (NCM)wiII provide structural /bridgeengi nee ring as well as rail /trans it design services. The company provides engineering services to transportation districts, cities, counties, metropolitan Leo planning organizations, rail authorities, transit districts, transportation joint powerauthorities, railroads, the state and private developers throughout California. NCM's senior management team is comprised of recognized industry leaders with an average of 25+ years of experience, and utilizes a far - reaching skill set to provide clients with cost - efficient solutions for even the most complex projects. NCM is a California SBE Corporation was founded in 2012 by principals who have managed over 250+ roadway, highway, rail and bridge projects across California. Utility Specialists (US) will provide dry utility coordination services. US provides natural gas, electric, UtititySpedalists telephone and cable television system design and extension negotiation services. US consists of ason fh'n° ` wtw'x highly skilled and qualified project managers, project coordinators, drafters, designers, construction managers and estimators all with extensive dry utility experience. US has computer -aided natural gas, electric, telephone, and cable television design capability, as well as computerized project status monitoring. The firm also offers dry utility construction coordination to ensure timely and efficient facility installation and energizing. ORGANIZATIONAL CHART. Barry Cowan PE • PRINCIPAL-IN- CHARGE • QUALITY ASSURANCE /CONTROL • 6% OF TIME DEVOTED TO PROJECT Dan Burk PE Scott Patton PE, QSD/P • PROJECT ENGINERIMANAGER 20% OF TIME DEVOTED TO PROJECT Jim Kuhlken PLA,LEEDAP • LANDSCAPE ARCHITECTURE COMPLETE STREETS 50% OF TIME DEVOTED TO PROJECT Djan Chandra PE, GE GEOTECHNICAL ENGINEERING 20% OF TIME DEVOTED TO PROJECT. Joe Hammond PE, QSD /P • PROJECTMANAGER • CITY POINT-OF-CONTACT • 15% OF TIME DEVOTED TO PROJECT Jayne Janda -Timba PE, TOR QSD /P • WATER RESOURCES /STORM WATER • 20% OF TIME DEVOTED TO PROJECT. Don Woolley PLS •`SURVEYING /MAPPING • 20% OF TIME DEVOTED TO PROJECT Romi Archer ENVIRONMENTAL PLANNING. 20% OF TIME DEVOTED TO PROJECT . It is noted that each of the key staff listed below have available staff to support the work for the City of Santa Ana Brian Stephenson' PE, TE, PTOE • TRAFFIC ENGINEERING • 15% OF TIME DEVOTED TO PROJECT Mohan Char PE Steve Mislinski PE • STRUCTURAL /BRIDGE ENGINEERING RAIL /TRANSIT 25% OF TIME DEVOTED TO PROJECT Martin Peterson DRY UTILITY COORDINATIONIDESIGN 20% OF TIME DEVOTED TO PROJECT Statement of Qualifications to Provide On -Call Engipe�i Sexy' s for the City of Santa Ana FIRM AND TEAM EXPERIENCE Rick Engineering Company (RICK) is an award winning, multi - disciplined planning, design, and engineering corporation founded in 1955. With over 220 employees company -wide, we have the manpower, experience and capabilities to manage both large and small scale projects from start to finish. We maintain divisions that focus on civil engineering, transportation and traffic engineering, urban design and planning, redevelopment, landscape architecture, construction services, surveying, mapping, photogrammetry, water resources, geographic information systems (GIS), specialized computer services, and legal support services. Our Orange County office located in Lake Forest will be the main location through which our team will provide services to the City of Santa Ana. The office was established to offer a broad spectrum of general civil engineering design and traffic - related services to Orange /Los Angeles area clients. All of our services are provided by specialized personnel working with the latest methods and technology available. This office will provide the RICK Team with the ability to mobilize quickly and as necessary to coordinate and complete the City's projects. Project Team Management & Supervision. We are acutely aware of the value and importance of providing close, individual attention to each project and to working within the constraints of time and budget. To assure optimum coordination and responsiveness, new projects are assigned to a team managed by a senior individual, who is then responsible for the project from inception to completion. Complete resumes for our personnel are provided in page 4 through 7 of this submittal. Principal -in- Charge /Contract Manager: Barry Cowan, PE: RICKassigns a principal ofthe firm to maintain qualitycontrol procedures and oversee the overall duties of the entire team. Mr. Barry Cowan, PE, a 28 -year veteran of RICK, will be the Principal -in- Charge for this project. Barry will assist our project managers with project management duties, as needed, as well as provide quality control checks on the entire team's designs. As a senior member of the company, Barry has the authority to draw upon our firm's internal resources to ensure the team's progress continues effectively and efficiently. If project requirements necessitate staff additions or adjustments, Barry will review the proposed staff member's qualifications and submit these to the City for their review and written approval. Barry is an experienced civil engineer and heads the efforts of RICK in Orange and Los Angeles Counties. Project Manager /Project Point -of- Contact: Joe Hammond, PE, QSD /P: For this project, Mr. Joe Hammond, PE, QSD /P, will be our designated Project Manager and main Point -of- Contact. In this role, Joe will oversee the daily duties of the entire project team. He will review all design plans prior to submitting to the City or other agency for their review to ensure the plans meet with all agency standards, as well as our in -house quality control standards. Joe will maintain open communication with the City, ensuring all questions and concerns are addressed efficiently. In the Event of Joe Hammond being unavailable, Barry Cowan can serve as project manager in his place. SUBCONSULTANTS. In order to provide the City with the most comprehensive and thorough team possible, we have teamed with the following subconsultants. LSA Associates, Inc. (LSA) is a diversified environmental, transportation, and community planning L S A firm. Owned by its employees, LSA is distinguished by the comprehensive nature of the services it provides and by its commitment to providing responsive and expert support to its clients. With nine LSA ASSOCIATES, INC. offices throughout California and nearly 200 employees, LSA has provided services in environmental analysis, transportation planning and engineering, biology, wetlands, habitat restoration, natural resource management, water quality, global climate change, geographic information systems (GIB), community and land planning, cultural and paleontological resources, air quality and noise impact assessments since 1976. LSA has prepared several thousand environmental documents over the past 39 years for both the public and private sector. Leighton Consulting, Inc. (Leighton) has provided consulting services in geotechnical and geoenvironmental disciplines since 1961. The firm has substantial experience in pavement design with a history of work including hundreds of miles of streets, including 35 miles forone redevelopment project Leighton Consulting, Inc alone. Leighton possesses the local knowledge of Orange County geology, regulatory agencies, and A LEiGHTON GROUP COMPANY codes necessary to keep this project compliant and on schedule. Leighton has completed thousands of investigations, with a large percentage supporting improvements to local streets and highways. We have provided services for roadway and street pavement projects throughout southern California, including work on the Metro Gold Line and Mid -City/ Exposition LRT in Los Angeles, the Orange County Pacific Arts Center (OCPAC) in Costa Mesa, and on -call contracts. Statement of Qualifications to Provide On -Call Engineering Services for the City of Santa Ana 25C -28 QUALITY & STAFF AVAILABILITY RICK is committed to providing the full staffing and resources necessary to complete anticipated tasks involved in this project. In the event of a high volume of work or an emergency, each staff member will be able to extend his /her time and effort to meet the unexpected conditions. With more than 200 professionals, we have the staffing capacity of more than $20 million dollars of work annually, with the flexibility to react to peak workloads. We have specifically organized our team with the depth of resources to be able to form local team assignments, which will meet scope and schedule requirements for this contract and have a proven track record of responsive, on -time and in- budget projects. Below we have provided a chart that illustrates our current financial capacity and project pipeline information. This project would be fully accomodated by RICK. Financial Capacity /Project Pipeline Information - RICK Orange County Office References. We encourage you to contact the referenced clients for further information regarding our qualifications and experience. Mr. Steve 011o, City of Irvine T: (949) 724 -7562 Project: Trabuco & Monroe Intersection Improvements Mr. Mark Uphus, City of Garden Grove T: (714) 741 -5191 Project: Harbor Boulevard Roadway & Landscape Improvements Mr. Keith Carter, City of Cypress T. (714) 229 -6750 Project: Various Intersection Improvements Mr. Alvin Papa, City of Cypress T: (714) 229 -6746 Project: Moody Street Beautification Mr. Jake Ngo, City of Westminster T: (714) 898 -3311 Projects: Westminster Boulevard Median Beautification; Street Rehabilitations at Three Locations Statement of Qualifications to Provide On -Call Engl26ye, !.2grs for the City of Santa Ana 13 ^ /o; PROJECT NAME PROJECT TYPE SCHEDULE COMPLETE NOTES START END Northwest Village Creek Redevelopment on -going 90% Engineering /Landscape Design Trolley Residential Affordable Housing on -going 80% Engineering /Landscape Design Las Cortes Affordable Housing Dec. 16 50% Engineering /Landscape Design Guave Street Bridge over Murrieta Creek Public Works, Transportation on -going 98% Engineering Design LANI Koreatown Madang Public Works; Redevelopment on -going 95 % Engineering Design Whitewood Road Alignment Study & IS /MND public Works, Transportation Oct. 15 60 %B Engineering Design Harbor Boulevard Improvements public Works; Transportation Oct. 14 100% Under Construction Medians and Landscape ' Public Works, Transportation Dec. 15 o` 65 /0 1 Location Under Construction, Enhancements 1 in Design,1 FY14115 Design Ocean Blvd &Poppy Ave, Concept Studies Public Works; Transportation Nov. 1 60% Engineering /Landscape Design Cerritos Avenue Bike Corridor Public Works, Transportation Oct. 14 Dec. 15 50% Engineering /Landscape Design Salem -136 Unit Apartment Redevelopment June 15 95% Under Construction Complex Christenson Property Land Development, 72 Units April 15 75% Engineering Design Canyon Hills Phase 8 Land Development, 460 units June 16 50% Engineering Design Miscellaneous other Projects Varies Varies Engineering /Landscape Design References. We encourage you to contact the referenced clients for further information regarding our qualifications and experience. Mr. Steve 011o, City of Irvine T: (949) 724 -7562 Project: Trabuco & Monroe Intersection Improvements Mr. Mark Uphus, City of Garden Grove T: (714) 741 -5191 Project: Harbor Boulevard Roadway & Landscape Improvements Mr. Keith Carter, City of Cypress T. (714) 229 -6750 Project: Various Intersection Improvements Mr. Alvin Papa, City of Cypress T: (714) 229 -6746 Project: Moody Street Beautification Mr. Jake Ngo, City of Westminster T: (714) 898 -3311 Projects: Westminster Boulevard Median Beautification; Street Rehabilitations at Three Locations Statement of Qualifications to Provide On -Call Engl26ye, !.2grs for the City of Santa Ana 13 EXHIBIT C CERTIFICATIONS C -1 through C -3 25C -30 Certifications 25C -31 CERTIFICATIONS APPENDIX ATTACB MENT 3 -1: NON - COLLUSION AFHDAVIT CERTIFICATIONS CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR NPDES & ENVIRONMENTAL PROGRAMS FEE STUDY RFP NO.: 14-069 NON - COLLUSION AFFIDAVIT (Title 23 United States Code Section 112 and Public Contract Code Section 7106) To the CITY OF SANTA ANA DEPARTMENT OF PUBLIC WORKS In accordance with Title 23 United States Code Section 112 and Public Contract Code 7106 the BIDDER declares that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the BIDDER has not directly or indirectly induced or solicited any other BIDDER to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived or agreed with any BIDDER or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the BIDDER has not in any manner, directly or indirectly, sought by agreemcnt, communication, or conference with anyone to fix the bid price of the BIDDER or any BIDDER, or to fix any overhead, profit, or cost element of the bid price, or of that of any other BIDDER, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, farther, that the BIDDER has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Note; The above Non - collusion Affidavit is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Nan - collusion Affidavit. BIDDERS are cautioned that making a false certification may subject the certifier to criminal prosecution. Signed State of California County of Subscribed and sworn to (or affirmed) before me on this _ day of 20� by . proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me. SEE FOLLOWING PAGE Notary Public Signature Notary Public Seal 25C -32 State of • u, County of k.. Subscribed and sworn to (or affirmed) before me on this •. •' " 4 proved Co me on '" basis of f ry evidence to be person* who appeared before me. 1YliiiII/ 25C -33 APPENDIX ATTACHMENT 3 -2: NON- LOBBYING CERTIFICATION CERTIFICATIONS CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR NPDES & ENVIRONMENTAL PROGRAMS FEE STUDY RFP NO.: 14 -069 The prospective participant certifies, by signing and submitting this bid or proposal, 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 undersigned, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the malting of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. 2. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence any officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant loan, loan or cooperative agreement, the undersigned shall complete and submit a "Disclosure of Lobbying Activities ". This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for malting or entering into this transaction imposed by Section 1352, Title 31, U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly. Firm Rick Engineering Company / Signed and Printed Name: Title Vice President 2015 25C -34 APPENDIX ATTACHMENT 3 -3: NON - DISCRIMINATION CERTIFICATION CERTIFICATIONS CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR NPDES i& ENVIRONMENTAL PROGRAMS FEE STUDY RFP NO.: 14 -069 The undersigned consultant or corporate officer, during the performance of this contract, certifies as follows: 1. The Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Consultant shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin, Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2. The Consultant shall, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 3. The Consultant shall send to each labor union or representative of workers with which he /she has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Consultant shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 5. The Consultant shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by riles, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such riles, regulations, and orders. 6. In the event of the Consultant's non - compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Execution Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law. 25C -35 7. The Consultant shall include the portion of the sentence immediately preceding paragraph (1) grid the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontract or purchase order as the administering agency may direct as means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a subconsultant or vendor as a result of such direction by the administering agency, the Consultant may request that the United States enter into such litigation to protect the interests of the United States. 8. Pursuant to California Labor Code Section 1735, as added by Chapter 643 Stats. 1939, and as amended, No discrimination shall be made in the employment of persons upon public works because of race, religious creed, color, national origin, ancestry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any consultant of public works violating this Section is subject to all the penalties imposed for a violation of the Chapter. Signed: Title: Vice President Firm: Rick Engineering Company Bate: June 18. 2015 25C -36 EXHIBIT D ADDITIONAL PROVISIONS The following documents in reference to the on -call engineering services hereunder are hereby on file with the City of Santa Ana's Public Works Agency and are hereby incorporated by reference: • Request for Qualificatons (RFQ) — RFQ No. 14 -037 • Statement of Qualifications (SOQ) — In response to RFQ No. 14 -037 • Request for Proposal (RFP) — RFP No. 14 -037B • Proposal —In response to RFP No. 14 -037B 25C -37 25C -38 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: AGREEMENT AMENDMENT WITH U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT TO PROVIDE HOUSING FOR FEDERAL INMATES (STRATEGIC PLAN NO. 1, 4A) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ..0• ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute a five -year agreement amendment beginning on February 2, 2016, and terminating June 30, 2020, with U.S. Immigration and Customs Enforcement (ICE) for jail housing services to include a 128 bed guarantee, and increase the maximum number of ICE detainees from 200 to 300, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The City of Santa Ana has had an agreement with U.S. Immigration and Customs Enforcement (ICE) since 2006, and has provided housing for Federal detainees awaiting immigration proceedings. In accordance with Jail cost recovery strategies, this contract amendment will expand the Jail facility's ability to house transgender, gay and bisexual detainees. As detailed in the terms of the amended agreement, detainees with special housing needs will be evaluated by an established committee comprised of Jail facility personnel, ICE personnel and contracted medical staff. The committee will determine the appropriate housing assignment of detainees within this identified classification based on the information gathered from the detainee's history, and facility safety or security concerns. Numerous local advocacy organizations were consulted whom provided valuable recommendations and insight. In conjunction with ICE personnel and committee members, Jail personnel will strive to ensure the housing needs are met within this expanded program, where appropriate. All detainees held in the Jail facility are provided immediate access to ICE personnel for case inquiries, and have access to non - profit and legal organizations specializing in immigration proceedings within the immediate local area. 25D -1 Immigration and Customs Enforcement Agreement Amendment February 2, 2016 Page 2 This amendment includes a 128 bed guarantee, which will allow ICE to house approximately 58 additional detainees in two 64 bed mods. There are currently 70 detainees in these two mods. In addition, this amendment increases the maximum number of ICE detainees from 200 to 300. These two contract modifications will assist the Jail with reaching current revenue projections by increasing our current 170 detainee Average Daily Population (ADP) to an ADP of 228. This ADP increase will generate an estimated $2.2 million annually. This agreement amendment will be effective February 2, 2016 through June 30, 2020 and can be terminated by either party for any reason with 90 days written notice in advance of termination. STRATEGIC PLAN ALIGNMENT Approval of this item assists the City in meeting Goal #1 Community Safety, Objective #4 (ensure a sound fiscal model for Jail operations), Strategy A (modify the Santa Ana Jail business model and identify short- and long -term goals to effectively meet the needs of the community through contract negotiations with outside agencies, evaluation of staffing needs and increasing operational efficiency). FICAL IMPACT Funds for this agreement will be deposited in the Police Department Jail Facility Rental account (no. 01114002 57460) for FY 2015 -16 through FY 2019 -20. Santa Ana Police Department Exhibit: Agreement with ICE APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez 1121 Executive Director, Finance & Mgmt. Services 25D -2 AMENDMENT OF SOLIC(TATIONIMODIFICATION OF CONTRACT ICE /Detent Mngt /Detent Contract -LAG Immigration and Customs Enforcement Office of Acquisition Management 24000 Avila Road, Room 3104 Attn: Natasha Nguyen (949)425 -7030 Laguna Niguel CA 92677 0. NAME AND ADDRESS OF CONTRACTOR fora., Oren,, mwr,, sue. SANTA ANA CITY OF 20 CIVIC CENTER PLAZA SANTA ANA CA 92701 ICE /Detent Mngt /Detent Contract -LAG Immigration and Customs Enforcement Office of Acquisition Management 24000 Avila Road, Room 3104 Attnt Natasha Nguyen, (949)425 -7030 06/30/2015 ❑The obwoomumbaodsofinstetion Is amended asset loft In Item it The hour aM data minalodfotmealiet at offer ❑la extended, Olsnoleidended. Odor must aGutm lodge, rowlpt 01 this amendment A lof to the hour and date assured In the WRAIMOn of as emended , by one of the following methods: (a) By cam ming IIUm$ B and 18, and roiuming WFOS of the OMOMAneN; (b) By dceomerindging "lot Of this amendment an each espy of the offer Submitted; of (a) By sapamr torah telsomm"tA, lntludps a ralmembir to the aaldmoon and anumdmam murmur. FAILURE OF YOUR ACKNOWLEDGEMENT TORE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOURANO DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER "by NINe at Nis mandmmmy W doe m to Mango an after sandy submitted, IYNf MOACO may be metl0 by tolaprnl or inner. proNdOd door integral tlr IBEermakes (ONNAM r tea Wlateueo and tho, amendment AM Is resolved MOP ( me OmEEM hW list 44M e cdoul _ CL ACCOUNTING AND APPROPRIATION DATA(IfreaNSed) 13. THIS ITEM ONLYAPPLISS TO MODIFICATION OF CONTRACTSIORDIRAS. IT MODIFIES THE CONTRACTANJ DER N0, AS GESCRIBE) IN REM 14. eNEeR ONE A. THIS CHANGE ORDER IS ISSUED PURSUANT TO(SpetiNouthm j THE CHANGES SET FORTH IN REM 14 ARE MADE IN THE CONTRACT ORDER NO. N ITEM 10A, W CONTRACTOWOFFEROR 15C. DATE SIGNED 0 THE ABOVE NUMBERED CONTRACTIORDER IS MODIFIED TO REFLECTTHEADMINISTRATIVE CHANGES (such as Consensus paying offoo. appNpnof ndafa,ataJ SET FORTH IN ITEM 14, PURSUANT TO THEAUTHORITY OF FAR 43.103(bL x C. THIS SUFFOUN ENTALAGREEMSNT IS ENTERED INTO PURSUANT TO AUTHORITY OR Mutual Agreement of the Parties ISVWWeaTEOdnamemya l . OTHER (Spodly typo ofmodfioalmn end eufhoofy) E. IMPORTANT: Cone000r O8 not. ©Ie'Muh3d to man this OMMON and Nllan _.. 1 comes to Ne Issuing a". 14 DESCRIPTION OF AMENDMENTIMODIFICATION( Ol Vanked oy UCF eedian nooWnaF, inelud,g so)afefwrstOnlrod subpd mO er wirer Possibly) DUNS Number: 083153247 COB POC: Daniel Pomplun, (760) 561 -6327 or e-mail at daniel,a.pomplun @ice.dhs.gov Attachment 6 - Transgender Care The purpose of this modification is to incorporate the following with an effective date on 02/01/2016: 1) The contractor shall comply with requirements related to the care and custody of transgender detainees as outlined in Attachment 6 - Transgender Care Continued ... pJ1 Except e1 ploMtlad heroin, W Wm1s pnd Ca1ldlaonS 01 Na deWmpnl rofeveneetl N Item 0 A u fair oaYdMOrn tlwmetl. mmann unenmm�d nnn In Ael rnmx non „nwi ISA NAME AND TIRE OF SIGNER crypts O/PI(n0 AMS AND TITLE OF CONTRACTING OFFICER (type orpnn0 Roberta J. Halls W CONTRACTOWOFFEROR 15C. DATE SIGNED 16B. UNITED STATES OF AMERICA 10C. DATE SIGNED PSlWanxa 4lpmrMaWbotrodb sk l ISVWWeaTEOdnamemya l Nan,wvor•resrou,e yYE"14V YL•.V h1J IIJ T`V1dIYs PrevlOUS OdiEan unueado Laura A. Rossini Senior Assistant City Attorneft b fANL1ANU PUNM W tntV. 1940) Preorbed by GSA FAR (46 CPR) 53.243 CONTINUATICNSHEETI REFERENCE NO, OF DOCUMENT BEING CONTINUED [Aul1 U EROIGSA -15- 0007 /P00001 2 1 2 NAME OF OFFEROR OR CONTRACTOR SANTA ANA CITY OF ITEM NO, (A) SUPPLIEEISERVICES (B) OUANTITY (C) JNIT (D) UNIT PRICE IEI AMOUNT IF) 2) Add Minimum Guarantee of 128 beds to CLIN 0001 Detention Services effective on 02/01/2016 with unchanged Bed Day Rate at $105.00 per bed. The minimum guarantee applies to the total population. 3) To change the total bed from 200 to 300 detention beds capacity in IGSA Article 1, paragraph C and IGSA Article 3, paragraph A Exempt Action: Y LIST OF CHANGES: Reason for Modification : Change Order Obligation amount for this modification: $0.00 Total Amount for this modification; $0.00 CHANGES FOR LINE ITEM 0001 - Detention Services Bed Day Rate Minimum Guarantee 128 Beds at $105.00 per bed Incremental beds up to 300 beds at $105.00 per bed This is a fixed price IGSA to supply services With estimated (DA) Bed Days, FOB: Destination Period of Performance: 07/01/2015 to 06/30/2020 Change Item 0001 to read as follows(amount shown is the obligated amount): 0001 Detention Services -- Bed Day Rate in accordance DA 105.00 0100 with ICE Agreement Number EROIGSA -15 -0007, Minimum Guarantee 128 Beds at $105.00 per bed Incremental beds up to 300 beds at $105.00 per bed This is a fixed price IGSA to supply services with estimated (DA) Bed Days. All other terms and conditions remain the same. N9W 1410.01•IfbP101 25D -4 OPTIONAL FORM::: N -0OI G'n.M4T69A FAA 111 CFRI 31110 ICE Detention Facility Contract Modification for Transgender Care [Santa Ana ,Tail FACILITY/ will comply with, the following requirements related to the care and custody of transgender detainees: Transgender Care 1) Intake: Upon arrival at the detention facility, intake personnel shall review the detainee's record and documentation. If the record indicates the detainee's gender identity differs from his /her biological sex, intake personnel shall only ask questions related to gender identity when such information is necessary to ensure the safety and security of other detainees and staff. In addition, the facility shall ensure that sensitive information, such as the detainee's gender identity, is not used to the detainee's detriment by facility personnel or other detainees. a) Intake personnel shall accurately record the detainee as transgender. The detainee shall be treated as a protective custody detainee for the duration of the intake process. b) The detainee shall be temporarily housed (i.e., in a location away from the general . population, to include in a medical unit or protective custody) until classification, housing, and other needs can be assessed by a Transgender Classification and Care Committee as delineated below. When feasible, the facility will initiate the review process within 72 hours (excluding holidays, and exigent circumstances and not to exceed 10 calendar days. In particular, placement into administrative segregation due to a detainee's identification as transgender should be used only as a last resort and when no other viable housing options exist. 2) Transgender Classification and Care Committee a) The facility shalt create and operate a Transgender Classification and Care Committee (- I'CCC). b) In facilities staffed by the ICE Health Service Corps (IHSC): i) The TCCC shall be comprised of a dedicated facility medical representative, facility mental health representative, a facility classification supervisor, the Enforcement and Removal Operations (FRO) Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Field Liaison, and a supervisory representative designated by the Field Office Director (FOD) (the supervisory representative from the ERO FOD can be the ERO LGBTI Field Liaison). ii) The TCCC may utilize remote 'forms of communication (i.e., phone or video - teleconference) to facilitate meetings and other activities. c) For facilities not staffed by IHSC: i) The TCCC shall include the IHSC Field Medical Coordinator (FMC), in addition to a dedicated facility medical representative, a facility mental health representative, I11,:1 Z 25D -5 ICE Detention Facility Contract Modification for Transgender Care a facility classification supervisor, facility ICE compliance officer or security supervisor, the ERO LGBTI Field Liaison, and a supervisory representative designated by the FOD (at the FOD's discretion, the supervisory representative can include the ERO LGBTI Field Liaison). d) The TCCC shall be chaired jointly by a representative from the facility and an ERO representative, preferably the FRO LGBTI Field Liaison. e) In coordination with ERO LGBTI Field Liaison, the facility staff members, including medical and mental health personnel, will have appropriate training and experience in working with tratrsgender persons. Training provided will be pursuant to a training plan mutually agreed upon by the parties. 3) Trartsgender Classification and Care Committee Determinations: a) Meeting with the Detainee: In preparation for the TCCC meeting, the TCCC designated facility medical representative(s) shall meet with the detainee as soon as practicable after the detainee's arrival to the facility to gather information necessary to solicit the detainee's preferences and requests with regard to housing, searches, I and other matters. The ERO LGBTI Field Liaison may also participate in any meeting with the detainee. The communication between the TCCC representative(s) and the detainee shall be in a language and manner the detainee can understand and should be conducted using the TCCC Determination Question Guide provided at the conclusion of this document. b) Meeting of the TCCC: The TCCC shall meet and provide a classification assessment no later than 10 calendar days but when feasible, within 72 hours (excluding weekends, holidays, and emergencies) after the detainee's arrival to the facility to assess medical, psychological, housing, and other needs. c) Classifications Assessment. As part of the transgender classification assessment, the TCCC shall, at a minimum, consider: i) The detainee's self - identification; ii) An assessment of the effect of possible placements on the detainee's health and safety, conducted by a medical or mental health professional (which may coincide with the full medical assessment done in accordance with the applicable ICE detention standards); iii) The detainee's record and available documentation, including forms and notes from initial processing, medical/mental health records, booking records, identification . documents, etc.; and iv) Documented observations provided by facility staff supervising the detainee in the Whenever practicable, the detainee's request should be honored but not to the detriment of the safety and security of the facility or facility staff. 211'a,: 25D -6 ICE Detention Facility Contract Modification for Transgender Care assigned housing unit, medical or mental health representative(s), to include those based upon the latest Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria for the diagnosis of Gender Dysphoria. d) Detention Plant: Once the TCCC determines the detainee's transgender classification, the TCCC shall construct an individualized Detention ;Plan for each transgender detainee. As part of its Detention Plan assessment, the TCCC shall, at a minimum, consider: i) All records and prior assessments, including medical/mental health records, and an assessment of the effects of any housing placement on the detainee's health and safety that has been conducted by a medical or mental health professional; ii) The detainee's preferences and requests; iii) The detainee's self-assessment of his or her safety needs (i.e., does the detainee feel threatened or at risk of harm ?); iv) The detainee's documented criminal history and past and /or current behavior; v) The TCCC's determination of the detainee's safety /security needs, including documented and self - reported history of sexual assault, victimization, or predatory behavior; vi) The detainee's physical, medical, or mental health, or special needs; viii) Privacy issues, including showers, single -cell sleeping arrangements, etc.; viii) Available beds and /or housing; ix) Whether the housing assignment would pose a safety risk to other detainees (See Section 3.e.ii "Safety, Security, and Privacy "); and x) Effects of housing assignment on resources, including facility staff. e) Requirements within the Detention Plant Consistent with existing ICE policy and detention standards, the individualized Detention Plan shall, at a minimum, contain the following requirements: i) Housing Assignment: Options to include: a. General housing consistent with the detainee's biological sex; b. General housing consistent with the detainee's gender identity; c. A protective custody unit; or d. Medical or administrative segregation, ii) Safety, Security and Privacy: The TCCC shall address the safety, security, and privacy needs for both the transgender detainee and the general detention population when assessing the housing assignment. Discussion(s) may 'include 3�Pa 25D -7 41Pat_ ICE Detention Facility Contract Modification for Transgender Care guidance on appropriate staffing levels in the housing option assigned (e.g., single or shared cell, or dormitory housing). iii) Hygiene: Consistent with ICE detention standards, facility staff shall ensure that transgender detainees are able to maintain acceptable personal hygiene practices consistent with their gender identity and that ensure their safety. Transgender detainees shall be provided the opportunity to shower in a setting that ensures safety and privacy. iv) Clothing and Commissary: Transgender detainees will be provided undergarments consistent with their gender identity as assessed by the TCCC. Transgender detainees shall be issued standard detention attire consistent with their assigned housing unit. Transgender detainees shall also be allowed to possess or purchase through the commissary those hygiene and personal items that are consistent with their Detention Plan. v) Searches: As prescribed by standard 2.10 of ICE's 2011 Per,urmarrce- Base! National Detention Standards (PBtVDSU, the transgender detainee's preference as to the gender of the officer that will perform any necessary pat -down and strip searches will be considered by the TCCC when drafting the Detention Plan and followed by detention facility staff accordingly. Also with regards to strip searches only, and pursuant to standard 2.10 of ICE's 20t l Pf3N]S special care should be taken to ensure that transgender detainees are searched in private. Searches shall be conducted in a professional and respectful manner, and in the least restrictive manner possible, consistent with security needs, Pursuant to DHS PREA Standards, at no time shall any search be conducted solely for the purpose of determining a detainee's biological sex. Requests for transgender detainees to remove appearance related items such as prosthetics, clothing that conveys gender identity, wigs, and cosmetics shall be consistent with requirements for the removal of similar items for other non - transgender detainees. All strip searches shall be documented. vi) Staff Communication: Detention facility staff shall refer to transgender detainees by their preferred pronouns or by the detainee's last name. vii) Medical Care: Pursuant to existing ICE detention standards, transgender detainees who were already receiving hormone therapy when taken into ICE custody shall have continued access to hormone therapy; those who have not yet begun treatment will be assessed and treated, if deemed medically necessary and safe in the context of their other medical conditions. All transgender detainees shall have access to continued mental health care and other transgender - related health care based on medical need. Medical care for transgender detainees shall be provided by qualified and appropriate medical professionals and administered pursuant to the applicable ICE detention standards. 25D -8 ICI Detention Facility Contract Modification for Transgender Care I) Decision: The TCCC will attempt to reach consensus on all decisions. In situations where a consensus is not reached, the final decision shall rest with the ERO LGBTI Field Liaison. i) The TCCC shall retain summary notes of each meeting to document persons attending and conclusions reached. A copy of the notes shall be placed in the detainee's detention file. ii) Absent extraordinary circumstances, a written Detention Plan by the TCCC for the detainee, including housing assignment, shall be forwarded to the facility classification supervisor within 72 hours (excluding weekends, holidays, and emergencies) of the TCCC's decision, and maintained in the detainee's detention file; a copy of the plan and housing assignment shall also be provided to the detainee. g) Implementation of Detention Plan: The classification supervisor or designee shall notify line staff of the TCCC's Detention Plan and change of housing assignment decision. i) Detention facility staff shall follow the Detention Plan outlined by the TCCC. If a detention facility staff member identifies a safety or security risk posed by the TCCC's plan, the staff member must inform the TCCC directly, or must notify his/her supervisor as soon as practicable, and that supervisor must notify the TCCC. The TCCC shall review the case and make adjustments to the Detention Plan, if necessary, within 72 hours (excluding weekends, holidays, and emergencies) of receiving notification. ii) In the case of an immediate threat to the safety or security of the transgender detainee or others, the detention facility staff may make a temporary change(s) to the TCCC's plan (to include housing assignment), but should notify the TCCC as soon as possible. Only the TCCC can approve permanent change(s) to the Detention Plan. h) Reassessment: The TCCC shall reassess a transgender detainee's Detention Plan and housing assignment after 30 days following the initial determination and then every 60 days thereafter or at any other time if additional relevant information becomes known, or following any incident of victimization or threats to safety experienced by the detainee. As part of its reassessment, the TCCC shall, at a minimum, consider: i) Changes in the transgender detainee's housing preferences; ii) Variations in the detainee's medical and /or mental health status; iii) Safety /security of the detainee, other detainees, and /or facility staff; iv) Any threats to safety experienced by the detainee; 5 1 P <<: 25D -9 ICJ Detention Facility Conti-act Modification for Transgender Care v) Continued availability of housing; and vi) The detention facility's documented concerns. i) Education: Upon adoption of this Contract Modification, the facility, in partnership with ICE ERO, will produce orientation training and /or materials describing the various housing options at the facility, including the possibility of placing a transgender detainee in general housing consistent with that detainee's gender identity. This training and/or materials will be provided to each detainee upon admission, as well as to detainees already placed in the facility. 4) Bed Space Guarantee: The Service Provider and ICE agree on a guarantee of 128 beds to separate and dedicate for Gay, Bisexual and Transgender (GBT) detainees. 5) Total ICE Detainees Permitted to be Housed with Service Provider: The Service Provider and ICE agree to modify EROIGSA -1.5 -007, specifically Article 3 "Covered Services ", Section A "Bedspace," to state that the Service Provider shall provide and operate up to 300 bed adult civil detention facility. 61 Poi, 25D -10 ICE Detention Facility Contract Modification for Transgender Care TCCC Determination Questions Guide In preparation for the TCCC meeting, the designated facility medical representative(s), shall meet with the detainee when feasible within 72 hours (excluding weekends, holidays, and emergencies) and no later than ten (10) calendar days after the detainee's arrival to the facility to gather information necessary to verify the transgender classification, and to solicit detainee's preferences and requests with regards to housing, searches, and other matters. The ERO LGBTI Field Liaison may also participate in any meeting with the detainee. The following questions are provided to assist in this initial meeting, but may be used in other settings as deemed appropriate. 1) Do you identify as transgender? IF YES to #l, then proceed to ask the following questions: Name 2) Do you go by or use any other name(s) or aliases? 3) What pronoun(s) do you prefer others use to refer to you? Medical Issues 4) Prior to coming here, were you taking any hormonal medications? a. If yes, what were thcy? b. How often were you taking them? c. Were these prescribed by a doctor? Hygiene and Grooming 5) Do you prefer to wear male or female clothing? 6) Are there any specific clothing items (e.g., undergarments) that you need that have not been provided? 7) Are there any specific personal hygiene items that you need that have not been provided'? Housing 8) Do you feel you are at risk for your safety based on your gender identity? a. Would you feel safer being housed with men or women? b. Would you feel safer being housed with transgender women or men? c. Would you feel safer being housed in a cell with someone else or by yourself? Programming 9) Do you feel comfortable being around male and female detainees during recreation, organized programs, or other types of group activities? a. If not, would you prefer to be separated from males or females? b. Do you feel you require complete separation, or would specific types of safeguards (e.g., sight or sound separation, staff escort) address your concern(s)? Searches 10) Do you have a preference for whether a male or female staff member searches you? If so, which would you prefer? 71P,,,. 25D -11 ICE Detention Facility Contract Modification for Transgender Care Other 11) Is there anything else we should know about you related to being transgender —any particul ar concerns? 12) Are there any other specific precautions and/or accommodations you think you would like to have to ensure your safety and welfare while at this facility? 81PEl'= 25D -12 ICE Detention Facility Contract Modification for Transgender Care Definitions The following definitions apply for purposes of this modification only: 1. Biological Sex. An individual's biological status as either male or female, typically assigned at birth, and associated primarily with physical attributes such as chromosomes, hormone prevalence, and external and internal anatomy. 2. Detainee. An individual detained in ERO custody. 3. Detention Plan. A plan for a transgender detainee, constructed by the Transgender Classification and Care Committee at an ICE detention facility with instructions for how to address issues including, but not limited to, housing, clothing, showering, grooming, name and pronoun use, recreation, programming, escort, transportation, searches, privacy, etc. 4. Diagnostic and Statistical Manual of Mental Disorders (DSM). The standard classification of mental disorders used by mental health professionals in the United States as published by the American Psychiatric Association. DSM -5 (Fifth Edition) is the most current edition of the drafting of this guidance. S. Gender Affirming Surgery. Surgical alteration of male or female genitals, or the reshaping, by any surgical procedure, of a male body into a body with female appearance, or vice versa. Also referred to as "sex reassignment surgery (SRS)," "gender reassignment surgery (GRS)," or by other names. Note: gender affirming surgery is the preferred name. 6. Gender Dysphoria. Medical diagnosis in the American Psychiatric Association's DSM -5 that describes the distress that may accompany the incongruence between an individual's experienced or expressed gender and the individual's biological sex. This was previously Icnown as Gender Identity Disorder. 7. Gender Expression. The ways in which an individual communicates /displays his /her gender identity to others; a combination of appearance, demeanor, and behavior. 8. Gender Identity. An individual's internal sense of being a man, woman, or another gender. It is not necessarily based on the individual's biological sex or on the individual's sexual orientation. Because gender identity is internal, it is not necessarily visible to others, but may be externally manifested in the individual's appearance, behavior, demeanor or other aspects of the individual's life. 9. Gender Non - Conforming. Having an appearance or manner that does not conform to traditional societal gender expectations. 10. lntersex. Having sexual or reproductive anatomy or chromosomal pattern that do not seem to fit typical definitions of male or female, Intersex medical conditions are sometimes referred to as disorders of sex development. 91P 1 �� 25D -13 ICE detention Facility Contract Modification for Transgender Care I1. LGBTI. The acronym for Lesbian, Gay, Bisexual, Transgender, and Intersex. 12. Sexual Orientation. A pattern of romantic, emotional, physical, and /or sexual attraction towards members of the same, opposite, or both sexes. Includes homosexuality, heterosexuality, and bisexuality, 13. rransgender. A person whose gender identity (i.e., internal sense of feeling male or female) is different from the sex assigned to the person at birth. 14. Transgender Classification and Care Committee (TCCC). The detention facility committee that gathers information and assesses the gender identity of the detainee, and produces and regularly assesses a Detention Plan for a transgender detainee. 15. Transgender man. An individual who is a biological female and has a gender identity as a man. 16. Transgender woman. An individual who is a biological male and has a gender identity as a woman. 17. Transition. The process by which an individual changes his /her gender from that assigned at birth to one with which he /she now identifies. This may include making personal, legal, and medical changes to his /her gender, such as changing his /her name and /or gender on legal documents; undergoing hormone therapy; and /or undergoing one or more forms of surgery. 1011';x,= 25D -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: FEBRUARY 2, 2016 TITLE: APPROVED ❑ As Recommended AMEND THE PARTNERSHIP FUNDING ❑ r Amended O ❑ Ordinance on Reading AGREEMENT WITH SOUTHERN [I 2 Ordinance on 2 "d Reading CALIFORNIA EDISON ❑ Implementing Resolution (STRATEGIC PLAN NO. 5, 2) ❑ Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute an amendment to the partnership agreement with Southern California Edison to extend the term through March 31, 2017, and to increase the funding allocation by $17,000, subject to nonsubstantive changes approved by the City Manager and City Attorney, DISCUSSION The California Public Utilities Commission (CPUC) authorized Southern California Edison (SCE), in partnership with cities, to deliver energy efficiency programs to utility customers in their service area. The City was awarded a partnership with SCE for 2010 -2012, which was subsequently extended to December 31, 2014, and again to June 30, 2016. The focus of the partnership is to jointly deliver energy efficiency information, training, and materials that benefit Santa Ana customers. The partnership also optimizes the City's opportunities for achieving short- and long- term energy savings and reduced utility bills, and assists city residents and businesses in understanding, managing, and reducing energy use and costs. The most recent partnership agreement ends June 30, SCE to extend the Santa Ana partnership agreement continuation of energy efficiency programming throu increased the total reimbursement allocation of this period. STRATEGIC PLAN ALIGNMENT 2016. However, the CPUC has authorized to March 31, 2017. This will enable the gh the partnership. In addition, SCE has agreement by $17,000 for this extension Approval of this item supports the City's efforts to meet Goal #5 — Community Health, Livability, Engagement & Sustainability, Objective #2 (expand opportunities for conservation and environmental sustainability). 25E -1 Extend Partnership Funding Agreement with Southern California Edison February 2, 2016 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with extending the agreement. However, continued implementation of energy efficiency programs and strategies will enhance the environment by improving air quality, reducing pollution, and conserving natural resources. FISCAL IMPACT The CPUC has approved a not -to- exceed allocation of $17,000 for the agreement extension period. Funds in the amount of $17,000 will be budgeted and available in the corresponding revenue and expenditure accounts: Revenue: Public Works Administrative Services Revenue Expense Reimbursement Account (No. 10117002 - 57006) - $17,000 Expense: Public Works Administrative Services Contract Services - Professional Expenditure Account (No. 10117601 - 62300). Fred Mousavipour Executive Director Public Works Agency FM /MLM /CLK APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibits: 1. Third Amendment to SCE Partnership Agreement 25E -2 THIRD AMENDMENT THIS THIRD AMENDMENT ( "THIRD AMENDMENT ") TO THE AGREEMENT TO JOINTLY DELIVER THE 2010 -2012 ENERGY LEADER PARTNERSHIP PROGRAM dated January 1, 2010 (as amended, the "Agreement ") is effective as of January 1, 2016 (the "Third Amendment Effective Date ") by and between SOUTHERN CALIFORNIA EDISON COMPANY ( "SCE "), AND CITY OF SANTA ANA ( "CITY "). Terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement. SCE may be referred to individually herein as the "Utility ". The Utility and the City may be referred to herein individually as a "Party" or collectively as the "Parties." RECITALS WHEREAS, the Parties previously executed the Agreement effective January 1, 2010 and subsequently amended the Agreement twice to extend its term through December 31, 2015 in accordance with the applicable decisions of the California Public Utilities Commission ( "Commission "); WHEREAS, on October 24, 2014, the Commission issued its Decision 14 -10 -046 approving the continuation of the Energy Efficiency Partnership Programs, consistent with the terms and conditions set forth in the Agreement, except as otherwise provided in this Third Amendment; and WHEREAS, the Parties desire to further amend the Agreement as necessary to provide an authorized budget for the 2016 Program and to update the Agreement as required to reflect the extended 2016 Program cycle. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. To the extent applicable, any reference in the Agreement, as amended, to the "2010 -2012 Program" shall also hereby include the 2016 Program. 2. Section 11 of the Agreement is hereby deleted in its entirety and replaced with the following: 11, END DATE FOR PROGRAM AND ADMINISTRATIVE ACTIVITIES Unless this Agreement is terminated pursuant to Section 25 below, or unless otherwise agreed to by the Parties or so ordered by the Commission, the Parties shall complete all Program Administrative activities (as defined in the PIP) and all reporting requirements by no later than March 31, 2017, and all Direct Implementation and Marketing & Outreach activities by no later than December 31, 2016. 3. Section 12 of the Agreement is hereby deleted in its entirety and replaced with the following: 12. FINAL INVOICES City of Santa Ana must submit final invoices to the Utility no later than March 31, 2017. SCE CONFIDENTIAL Exhibit 1 25E -3 1 of 5 4. Section 25.1 of the Agreement is hereby deleted in its entirety and replaced with the following: 25.1 Term. This Agreement shall be effective as of the Effective Date. Subject to Section 37, the Agreement shall continue in effect until March 31, 2017 unless otherwise terminated in accordance with this Agreement, as amended. Exhibit B -1 (ENERGY LEADER PARTNERSHIP PROGRAM 2015 GOALS & PARTNER BUDGET) of the Agreement is hereby deleted in its entirety and replaced with the version of Exhibit B -I (ENERGY LEADER PARTNERSHIP PROGRAM 2016 GOALS & PARTNER BUDGET FOR THE CITY OF SANTA ANA) attached to this Third Amendment, which attached versions are incorporated herein by reference and made a part of the Agreement. 6. Section 26 of the Agreement is hereby deleted in its entirety and replaced with the following: 26. WRITTEN NOTICES Any written notice, demand or request required or authorized in connection with this Agreement, shall be deemed properly given if delivered in person or sent by facsimile, nationally recognized overnight courier, or first class mail, postage prepaid, to the address specified below, or to another address specified in writing by a Parry as follows: The City: City of Santa Ana Executive Director, Public Works Agency 20 Civic Center Plaza Santa Ana, CA 92701 Phone: (714) 647-5654 Fax: (714) 647-5622 SCE: Southern California Edison Company Irian Parelch, Program Manager 151.5 Walnut Grove Avenue Rosemead, CA 91770 Phone: (626) 302-0666 Fax: (626)302 -61.34 Notices shall be deemed received (a) if personally or (rand- delivered, upon the date of delivery to the address of the person to receive such notice if delivered before 5:00 p.m. PST (or PDT, as applicable), or otherwise on the Business Day following personal delivery; (b) if mailed, three (3) Business Days after the date the notice is postmarked; (c) if by facsimile, upon electronic confirmation of transmission, followed by telephone notification of transmission by the noticing Party; or (d) if by overnight courier, on the Business Day following delivery to the overnight courier within the time limits set by that courier for next -day delivery. 7. This Third Amendment may be executed in one or more counterparts and delivered by electronic means, each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument. 8. General. From and after the Third Amendment Effective Date, any reference to the Agreement contained in any notice, request, certificate or other instrument, document or agreement shall be deemed to mean the Agreement, as amended by any prior amendments to the Agreement, and this Third Amendment. In the event of any conflict between the Agreement, as amended, and this Third Amendment, this Third Amendment shall prevail. All remaining provisions of the Agreement shall remain unchanged and in full force and effect. Each party is fully responsible for ensuring that the person signing this Third Amendment oil that party's behalf has the requisite legal authority to do so. SCE CONFIDENTIAL 25E -4 2of5 SCE CONFIDENTIAL [SIGNATURES FOLLOW ON NEXT PAGE] 25E -5 3 of 5 IN WITNESS WHEREOF, the Parties hereto have caused this Third Amendment to be executed by their duly authorized representatives as of the Third Amendment Effective Date, CITY OF SANTA ANA PARTNERSHIP PROGRAM: ATTEST: By: Maria D. Huizar Cleric of the Council APPROVED AS TO FORM: Sonia R. Carealho City Attorneys By: 3use S oval Chief ssistant City Attorney SCE: SOUTHERN CALIFORNIA EDISON COMPANY By: Name Printed: Marc Ulrich CITY OF SANTA ANA: By: David Cavazos City Manager RECOMMENDED FOR APPROVAL: By: Fred Mousavipour Executive Director, Public Works Agency Title: Vice President, Customer Programs and Services Date: SCE CONFIDENTIAL 25E -6 4of5 ENERGY LEADER PARTNERSHIP PROGRAM 2016 GOALS & PARTNER BUDGET FOR City of Santa Ana Partnership Program 2016 Program Year Budget Funding and Goals 2016 Partner Bud et Budget qa!egoq Maximum Partner Budget for 2016 Administrative 0 Marketing & Outreach $ 15,000 Direct Implementation non - incentives) $ 2,000 Total $ 17,000 In addition to the 2016 Partner Budget shown above, SCE will provide project incentives, technical assistance and strategic plan activities support to achieve program goals up to the funding levels shown below in the 2016 SCE Funding table. 2016 SCE Funding Budget Cateqory Maximum SCE Bud et for 2016 Incentive $17,000 Technical Assistance $30,000 Strategic Plan(') TBD 2016 Energy Savings Goal Energy Savings (kWh) 102,590 Demand Reduction (kW ) q Footnotes: (1) Strategic Plan funding will be determined in 2016 and communicated to Partner. SCE CONFIDENTIAL 25E -7 5of5 25E -8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: RECOMMENCED ACTION CLERK OF COUNCIL USE ONLY: _a•* r, ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 m Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an amendment to the partnership agreement with the Southern California Gas Company to extend the term through March 31, 2019, and to increase the funding allocation by $34,000, subject to nonsubstantive changes approved by the City Manager and City Attorney. The California Public Utilities Commission (CPUC) authorized the Southern California Gas Company (SCG), in partnership with cities, to deliver energy efficiency programs to utility customers in their service area. The City was awarded a partnership with SCG for 2013 -2014, which was subsequently extended to March 31, 2016, The focus of the partnership is to jointly deliver energy efficiency information, training, and materials that benefit Santa Ana customers. The partnership also optimizes the City's opportunities for achieving short- and long -term energy savings and reduced utility bills, and assists city residents and businesses in understanding, managing, and reducing energy use and costs, The most recent partnership agreement ends March 31, 2016, However, the CPUC recently authorized SCG to extend the Santa Ana partnership agreement to March 31, 2019. This will enable the continuation of energy efficiency programming through the partnership, In addition, SCG has increased the total reimbursement allocation of this agreement by $94,000 for this extension period. l Approval of this item supports the City's efforts to meet Goal #5 — Community Health, Livability, Engagement & Sustainability, Objective #2 (expand opportunities for conservation and environmental sustainability). 25F -1 Extend Partnership Funding Agreement with Southern California Gas Company February 2, 2016 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with extending the agreement. However, continued implementation of energy efficiency programs and strategies will enhance the environment by improving air quality, reducing pollution, and conserving natural resources. FISCAL IMPACT The CPUC has approved a not -to- exceed allocation of $84,000 for the agreement extension period. Funds in the amount of $84,000 will be budgeted and available in the corresponding revenue and expenditure accounts: Revenue: Public Works Administrative Services Revenue Expense Reimbursement Account (No. 10117002 - 57006)- $84,000 Expense: Public Works Administrative Services Contract Services- Professional Expenditure Account (No. 10117601- 62300). 41AII Fre ousavi our Executive Director Public Works Agency FMIMLM /CLK APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibits: 1. Second Amendment to SCG Partnership Agreement 25F -2 SECOND AMENDMENT TO JOINTLY DELIVER THE 2013 -2014 CITY OF SANTA ANA ENERGY EFFICIENCY PARTNERSHIP PROGRAM This SECOND AMENDMENT TO THE AGREEMENT TO JOINTLY DELIVER THE 2013.2014 CITY OF SANTA ANA ENERGY EFFICIENCY PARTNERSHIP PROGRAM (this "Second Amendment "), is effective as of January 1, 2016 ("Second Amendment Effective Date "), is entered into by slid between SOUTHERN CALIFORNIA GAS COMPANY ( "SCG" or "Utility ") and CITY OF SANTA ANA. SCG and City of Santa Ana are sometimes referred to herein individually as a "Party' or collectively as the "Parties." Initially capitalized terms used but not defined herein shall have the meaning ascribed to them in the Agreement (as defined below). RECITALS WHEREAS, the Parties entered into that certain Agreement to Jointly Deliver the 2013 -2014 City of Santa Ana Energy Efficiency Partnership Program effective as of January 1, 2013, as amended by that certain First Amendment effective as of January 1, 2015 (collectively, the "Agreement "); WHEREAS, on October 28, 2015, the Commission issued Decision D,15 -10 -028 approving the continuation of the Energy Efficiency Partnership Programs, including continuation of the CITY OF SANTA ANA Partnership Program for 2016 and beyond; and WHEREAS, the Parties desire to amend the Agreement (1) to extend its term through March 31, 2019, (2) to provide an authorized budget for the 2016.2018 Program, and (3) to otherwise update the Agreement as required to reflect the extended 2016 Program cycle. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. To the extent applicable, any reference in the Agreement, as amended, to the "2013 -2014 Program" shall also hereby include the 2016 Program. 2. Section 11 of the Agreement is hereby deleted in its entirety and replaced with the following: "11. END DATE FOR PROGRAM AND ADMINISTRATIVE ACTIVITIES Unless this Agreement is terminated pursuant to Section 25 below, or unless otherwise agreed to by the Parties or so ordered by the Commission, the Parties shall complete all Program Administrative activities (as defined in the PIP) and all reporting requirements by no later than March 31, 2019, and all Direct Implementation and Marketing & Outreach activities by no later than December 31, 2018." 3. Section 12 of the Agreement is hereby deleted in its entirety and replaced with the following: "12. FINAL INVOICES CITY OF SANTA ANA must submit final invoices to Utility no later than March 31, 2019." Exhibit 1 25F -3 4. Section 25.1 of the Agreement is hereby deleted in its entirety and replaced with the following: "25.1 TERM This Agreement shall be effective as of the Effective Date. Subject to Section 37 (as defined in the PIP), the Agreement shall continue in effect until March 31, 2019 unless otherwise terminated in accordance with the provisions of Section 25.2 or 30 (as defined in the PIP)." 5. Section 26 of the Agreement is hereby deleted in its entirety and replaced with the following: "26. WRITTEN NOTICES Any written notice, demand or request required or authorized in connection with this Agreement, shall be deemed properly given if delivered in person or sent by nationally recognized overnight courier, or first class mail, postage prepaid, to the address specified below, or to another address specified in writing by a Party as follows: The City: City of Santa Ana Executive Director, Public Works Agency 20 Civic Center Plaza, M -21 City of Santa, CA 92701 Tel: (714) 647-5654 Fax: (714) 647-5622 SCG: Southern California Gas Company Paulo Morals, Energy Programs Supervisor 555 W. Fifth Street, GT20B4 Los Angeles, CA 90013 Tel: (213) 244 -3246 Fax: (213) 244-8252 Email: PMorais @semprautilities.com Notices shall be deemed received (a) if personally or hand- delivered, upon the date of delivery to the address of the person to receive such notice if delivered before 5:00 p.m. PST (or PDT, as applicable), or otherwise on the Business Day following personal delivery; (b) if mailod, three (3) Business Days after the date the notice is postmarked; or (c) if by overnight courier, on the Business Day following delivery to the overnight courier within the time limits set by that courier for next -day delivery," 6. This Second Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument. 7. Exhibit B to the Agreement is hereby deleted in its entirety and replaced with the version of Exhibit B attached to this Second Amendment, which attached version is incorporated herein by reference and made a part of the Agreement. General. From and after the Second. Amendment Effective Date, any reference to the Agreement contained in any notice, request, certificate or other instrument, document or agreement shall be deemed to mean the Agreement, as amended by any prior amendments to the Agreement, and this Second Amendment. In the event of any conflict between the Agreement, as amended, and this Second Amendment, this Second Amendment shall prevail. All remaining provisions of the Agreement shall remain unchanged and in full force and effect. Each party is fully responsible for ensuring that the person signing this Second Amendment on that party's behalf has the requisite legal authority to do so. 25F -4 IN WITNESS WHEREOF, the Parties hereto have caused this Second Amendment to be executed by their duly authorized representatives as of the Second Amendment Effective Date, ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorn y-- JO E ANDO AL ie Assistant Clty Att ney SOUTHERN CALIFORNIA. GAS COMPANY FRANK SPASARO Energy Efficiency Partnerships Manager CITY OF SANTA ANA DAVID CAVAZOS City Manager RECOMMENDED FOR APPROVAL: FRED MOUSAVIPOUR Executive Director, Public Works Agency 3 25F -5 EXHIBIT B CITY OF SANTA ANA and SOUTHERN CALIFORNIA GAS COMPANY PARTNERSHIP 2013 -2018 GOALS & PROGRAM BUDGET Natural as Savings Target: Other non - resource goals are contained in the SCG PIP in Exhibit B -2 2013 -2018 SCG Santa Ana Partnership 2013 -2018 Partnership Total Non - Incentive Budget 2013 -2015 2016 2017 2018 6 Yr Total SCG 28,500 9,500 9,500 9,500 57,000 Therms $0,000 Therms Therms Therms Therms $8,000 Other non - resource goals are contained in the SCG PIP in Exhibit B -2 2013 -2018 SCG Santa Ana Partnership 2013 -2018 Partnership Total Non - Incentive Budget $4T5—,4-76-- 2010) 2017 2018 SCG Authorized Budget Administration $0,000 $0,000 Total UtilitX Authorized Budget $277,476 Marketing & Outreach $24,000 $8,000 $8,000 Partner Authorized Bud et $168,000 $60,000 $20,000 $20,000 $20,000 2013 -2018 Total Non - incentive Program Budget $445,476 Projected Allocations for Santa Ana Partnership Authorized Budget $168,000 (1) Incentive is a part of SCG Core Program's Incentive Budget. The incentive level is $1.00 per therm for calculated measures or 80% of the equipment cost, whichever is the lesser of the two. Incentives for deemed measures are in accordance with the incentive levels for the applicable SCG Core Programs. 2013 -2018 City of Santa Ana Partnership 25F -6 2013 -2015 2010) 2017 2018 Administration $0,000 $0,000 $0,000 $0,000 Marketing & Outreach $24,000 $8,000 $8,000 $8,000 Direct Implementation $60,000 $20,000 $20,000 $20,000 (1) Incentive is a part of SCG Core Program's Incentive Budget. The incentive level is $1.00 per therm for calculated measures or 80% of the equipment cost, whichever is the lesser of the two. Incentives for deemed measures are in accordance with the incentive levels for the applicable SCG Core Programs. 2013 -2018 City of Santa Ana Partnership 25F -6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: TENTATIVE PARCEL MAP NO. 2015 -03 (COUNTY MAP NO. 2014 -141) TO SUBDIVIDE AN EXISTING PARCEL INTO TWO LOTS AT 1615 WEST POMONA STREET — BOB BEERS, APPLICANT {STRATEGIC PLAN NOS. 3,2,5; 5, 3, 4} :�� / Z� Z CITY MANAGE 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 Confirm the Zoning Administrators action approving Tentative Parcel Map No. 2015 -03 (County Map No. 2014 -141) as conditioned. ZONING ADMINISTRATOR ACTION On January 13, 2016, the Zoning Administrator adopted a resolution approving Tentative Parcel Map No. 2015 -03 (County Map No. 2014 -141) as conditioned to subdivide an existing vacant residential lot into two lots and to construct new family residences at 1615 West Pomona Street located in the Single Family Residential (R -1) zoning district. The Zoning Administrator made no changes to the recommended conditions of approval outlined in the attached staff report (Exhibit A). DISCUSSION Bob Beers is requesting approval of a parcel map to subdivide an existing lot into two in order to facilitate the construction of two new single - family residences. The first lot will contain 8,581 square feet and will be improved with a new single - family residence and site upgrades, including landscaping and a perimeter wall. The second lot will contain 8,574 square feet and will be improved in a similar fashion with a new residence and site upgrades. The proposed development will satisfy the minimum requirements of the SAMC. Full -sized site plans are available for public viewing in the Clerk of the Council Office. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objective #2 (create new opportunities for business /job growth and encourage private development through new General Plan and Zoning Ordinance policies) and Objective #5 32A -1 TTM No. 2015 -03 — Subdivide Parcels at 1515 West Pomona Street February 2, 2016 Page 2 (leverage private Investment that results in tax base expansion and job creation citywide); Goal ##b - Community Health, t.ivabliity, Engagement & Sustainability, Objective ##3 (facilitate diverse housing opportunities and support efforts to preserve and Improve the livability of Santa Ana neighborhoods) and Objective ##A (support neighborhood vitallty and livability). FISCAL IMPACT There is no fiscal impact associated with this action, VA R,, 1, M AP:rb aftapartMuff RaperW Par QC \TPM1 p.R Aldan Mdlvlolan 1M s W Pomona= Exhibit: A. Zoning Administration Staff Report 32A -2 REQUEST FOR Zoning Administrator Action ZONING ADMINISTRATOR MEETING DATE: JANUARY 13, 2016 TITLE: PUBLIC HEARING — FILED BY BOB BEERS FOR TENTATIVE PARCEL MAP NO. 2015 -03 (COUNTY MAP NO. 2014-141) TO SUBDIVIDE AN EXISTING PARCEL INTO TWO LOTS AT 1615 WEST POMONA STREET (STRATEGIC PLAN NOS, 3,2; 3, 5; 5,3; 5,4) Prepared by All Pezeshkpour PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request Cl Staff Recommendation CONTINUED TO C-,... Planning Manager Adopt a resolution approving Tentative Parcel Map No. 2015 -03 (County Map No. 2014 -141) as conditioned: Request of Applicant Bob Beers, representing the Aldana Family Trust, is requesting approval of a tentative parcel map to subdivide a parcel into two residential lots to facilitate the construction of two new single- family residences. Applications for residential subdivisions of under five parcels require approval of a parcel map by the Zoning Administrator pursuant to Section 34 -126 of the Santa Ana Municipal Code (SAMC). Project Location and Site Description The project site is a 17,155- square foot (0,39 -acre) lot on Pomona Street between Rene Drive and Spruce Street. The property is flat and rectangular in shape and is currently improved with a perimeter block wall. The General Plan land use designation for the site is Low - Density Residential (LR -7), which allows for residential land uses. The zoning for the site is Single- Family Residence (R- 1), which allows for single- family residences. The proposed project is consistent with the General Plan land use and the zoning designation. Land uses surrounding the site include single - family residences to the east and west, as well as multiple - family residences to the north and south across Pomona Street (Exhibits 1, 2 and 3). Project Description Bob Beers is requesting approval of a parcel map to subdivide an existing lot into two in order to facilitate the construction of two new single - family residences. The first lot will contain 8,581 square feet and will be improved with a new single - family residence and site upgrades, including landscaping and a perimeter wall. The second lot will contain 8,574 square feet and will be improved in a similar fashion with a new residence and site upgrades. The proposed development will satisfy the minimum requirements of the SAMC. EXHIBIT A 32A -3 Tentative Parcel Map No. 2015 -03 January 13, 2016 Page 2 The applicant has submitted preliminary architectural plans, including a site plan, floor plans, elevations, and a landscape plan. The proposed improvements comply with the minimum setback and lot coverage requirements. Subsequent plan check submittals will be subject to additional architectural and landscape review to ensure compliance with current architectural, design, landscape, and development standards applicable to single - family residential developments (Exhibits 4, 5 and 6). Proiect Background The through lot that is the subject of this application was shown on assessor's parcel maps as early as March 1974. Historic records indicate that the subject parcel has always been vacant, although the perimeter wall was constructed in the 1970s. In August 2014, the applicant submitted applications and plans to divide the lot into two roughly equally- sized properties and to construct a single - family residence on each resulting vacant lot. Since that time, staff has worked with the applicant to address required site improvements, correct various items on the tentative parcel map, and refine the proposed single- family residences. Project Analysis Subdivision requests are governed by Chapter 34 and Chapter 41 of the SAME. Tentative parcel map requests may be granted when it can be shown that the project is consistent with the General Plan; conforms to all applicable requirements of the zoning, subdivision, and other applicable City codes and ordinances; is physically suitable for the type and density of the proposed project; will not cause substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat; will not cause serious public health problems; and will not conflict with easements necessary for public access. The proposed subdivision is consistent with the LR -7 land use designation. Moreover, the proposed subdivision is consistent with several policies within the Land Use Element of the General Plan, including: Policy 1.5 (Maintain and foster a variety of residential land uses in the City) and Policy 3.1 (Support development which provides a positive contribution to neighborhood character and identity). Moreover, the proposed subdivision conforms to the minimum requirements as well as meets the letter and intent of the State of California Subdivision Map Act provisions. The project is in keeping with the site plan review for the project as well as Chapters 34 and 41 of the Santa Ana Municipal Code. Further, there are no physical constraints on the site that preclude development of the site. The proposed site consists of approximately 0.39 acres of land that is physically suitable for the residential development as proposed. The proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. The 32A -4 Tentative Parcel Map No. 2Q15 -03 January 13, 2016 Page 3 parcel is located in an urbanized area, and there are no known fish or wildlife populations existing on the project site. The proposed subdivision will not have any detrimental effects upon the general public and qualifies for a categorical exemption under the provisions of the California Environmental Quality Act (CEQA). Additional information is provided in the CEQA analysis section of this report. Finally, the design or improvements of the proposed project will not conflict with easements necessary for public access through or use of the property within the proposed project since there is no public access easement located within this property (Exhibit 7). Public Notification The project site is located within the boundaries of the Shadow Run Neighborhood Association. The president of this neighborhood association was contacted by staff and was notified by mail 10 days prior to this public hearing. In addition, the project site was pasted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to all property owners and tenants within 500 feet of the project site. At the time of this printing; no areas of concern were raised, nor had any correspondence, either written or electronic, been received from the neighborhood president or from any members of the public. CEQA Compliance This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The project is exempt from further review pursuant to Section 15303. This Class 3 exemption allows in -fill developments for the construction and location of limited numbers of new, small facilities or structures, such as the proposed project. The project entails subdividing an existing residential lot into two residential lots of roughly equal size and constructing one single- family residence on each lot. The project has been found by the City's development review agencies to not create any adverse impacts such as noise, traffic, or safety concerns. As a result, Categorical Exemption Environmental Review No. 2014 -83 will be filed for this project. Strategic Plan Alignment Approval of this item supports the City's efforts to meet Goal No. 3 Economic Development, Objectives No. 2 (create new opportunities for business /job growth and encourage private development through new General Plan and Zoning Ordinance policies) and No. 5 (leverage private investment that results in tax base expansion and job creation citywide) of the Santa Ana Strategic Plan. Moreover, approval of this item supports Goal No. 5 Community Health, Livability, Engagement & Sustainability, Objectives No. 3 (facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods) and No. 4 (support neighborhood vitality and livability). 32A -5 Tentative Parcel Map No. 2015 -03 January 13, 2016 Page 4 Conclusion Based on the analysis provided within this report, staff recommends that the Zoning Administrator approve Tentative Parcel Map No. 2015 -03 as conditioned. Ali Pezeshkpour, AICP Associate Planner APjm a&epoOStaff Reports for ZAtTPM15-3 Aldan SpbdIvIsion 1615W Pamonaza Attachments, Exhibit 1- Vicinity Map Exhibit 2 —Location Map Exhibit 3 — Existing Conditions Photo Exhibit 4 — Site Plan Exhibit 5 — Floor Plans Exhibit 6 -- Elevations Exhibit 7 — Tentative Parcel Map 32A -6 WILSHIRE U I i. AVE. 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Ym`4W �i�i I I I w I N � I r} m EXHISH i 32A -15 `I � 41 w a g a $ U i Rai Ito s ¢1¢g ` &pp P oa w a g a $ U i Rai Ito LS 1.13.16 RESOLUTION NO. 2016 -xx A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF SANTA ANA APPROVING TENTATIVE PARCEL MAP NO. 2015 -03 AS CONDITIONED TO ALLOW THE SUBDIVISION OF AN EXISTING SINGLE PARCEL INTO TWO PARCELS AT THE PROPERTY LOCATED AT 1615 WEST POMONA STREET BE IT RESOLVED BY THE ZONING ADMINISTRATOR OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Zoning Administrator of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Tentative Parcel Map No. 2015 -03 to allow a subdivision of a single parcel into two parcels at the property located at 1615 West Pomona Street. B. Tentative Parcel Map No. 2015 -03 came before the Zoning Administrator of the City of Santa Ana on January 13, 2016, for a duly noticed public hearing. C. Applications for residential subdivisions of under five (5) units require approval of a parcel map by the Zoning Administrator pursuant to Santa Ana Municipal Code (SAMC) Section 34 -126. D. For Tentative Parcel Map No. 2015 -03, the Zoning Administrator of the City of Santa Ana determines that the following findings have been established: The proposed project, as conditioned, and its design and improvements are consistent with the Low Density Residential (LR- 7) land use designation of the General Plan and are otherwise consistent with all other elements of the General Plan and any applicable specific plans. The proposed project, as conditioned, and its design and improvements will be consistent with the Low Density Residential land use designation of the General Plan and are otherwise consistent with all other elements of the General Plan and any applicable specific plans. The density of the proposed subdivision, at seven dwelling units per acre, is consistent with the Low Density Residential land use designation and all other elements of the General Plan. Resolution No. 2016 -xx Page 1 of 6 32A -16 2. The proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. The proposed project, as conditioned, will conform to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. The proposed project, as conditioned, conforms to the provisions of the zoning code, including lot size, lot frontage, landscaping, setbacks, lot coverage, and parking. 3. The project site is physically suitable for the type and density of the proposed project. The proposed site is physically suitable for the single - family residences as proposed since the property is located within the Single - Family Residence (R -1) zoning district, which permits single - family dwellings, and has a General Plan land use designation of Low Density Residential at seven dwelling units per acre. Additionally, this site is surrounded by a combination of residential uses of various densities, including single - family and multi - family structures. 4. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. Since the project site is located in an urbanized area, there are no known fish or wildlife populations existing on the project site. Therefore, the proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. 5. The design or improvements of the proposed project will not cause serious public health problems. The design or improvements of the proposed project will not cause serious public health problems. The proposed subdivision will not have any detrimental effects upon the general public. Each property includes necessary utilities and infrastructure improvements as conditioned in Development Project No. 2014 -36. Resolution No. 2016 -xx Page 2 of 6 32A -17 6. The design or improvements of the proposed project will not conflict with easements necessary for public access through or use of the property within the proposed project. The design or improvements of the proposed project will not conflict with easements necessary for public access through or use of the property within the proposed project since there is no significant public access easement located within this property. E. In accordance with the California Environmental Quality Act, the proposed project is categorically exempt from CEQA review per Section 15303. The Class 3 exemption applies to construction and location of limited numbers of new, small facilities or structures, such as projects characterized as small in- fill development meeting specific conditions and their criteria. The project meets all criteria of Section 15303(a). Section 2. The applicant agrees to indemnify, hold harmless, and defend the City of Santa Ana, its officials, officers, agents, and employees, from any and all liability, claims, actions or proceedings that may be brought arising out of its approval of this project, and any approvals associated with the project, including, without limitation, any environmental review or approval, except to the extent caused by the sole negligence of the City of Santa Ana. Section 3. The Zoning Administrator of the City of Santa Ana after conducting the public hearing hereby approves Tentative Parcel Map No. 2015 -03 as conditioned in Exhibit A, attached hereto and incorporated herein for the project located at 1615 West Pomona Street. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Zoning Administrator Action dated January 13, 2016, and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. ADOPTED this 131h day of January, 2016. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney Verny O. Carvajal, AICP Zoning Administrator 32A -18 Resolution No. 2016 -xx Page 3 of 6 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Jocelyn Magalona, Clerk of the Zoning Administrator, do hereby attest to and certify the attached Resolution No. 2016 -xx to be the original resolution adopted by the Zoning Administrator of the City of Santa Ana on January 13, 2016. Date: Clerk of the Zoning Administrator City of Santa Ana 32A -19 Resolution No, 2016 -xx Page 4 of 6 EXHIBITA Conditions of Approval for Tentative Parcel Map No. 2015 -03 Tentative Parcel Map No. 2015 -03 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this approval. The applicant must remain in compliance with all conditions listed below throughout the life of the project. Failure to comply with each and every condition may result in the revocation of the approval for the tentative parcel map. A. Planning Division 1. Two copies of the recorded final parcel map shall be submitted each to the Planning Division, Building Division and Public Works Agency within 10 days of recordation. 2. The tentative parcel map, final map and all improvements required to be made or installed by the subdivider shall be in accordance with the requirements and design standards and specifications of the City of Santa Ana and the requirements of the State Subdivision Map Act. 3. After project occupancy, landscaping is to be maintained in accordance with the landscape plan approved for the project. This shall include the minimum levels of plant materials shown on the landscape plan and installed at the time of occupancy. 4. Prior to recordation of the final map, the applicant shall obtain permits for the installation of a six -foot tall decorative block wall between the proposed parcels. All other fencing shall match the required block wall in terms of height and material and will be subject to review upon submittal of the new single - family residence into plan check. 5. The applicant shall be responsible for securing and maintaining the newly - created lot(s). The property owner shall also be responsible for maintaining the proposed lot(s) free from debris, overgrown vegetation, and graffiti. 6. All real estate signage must be removed from the site within one (1) year from the date of installation. An extension of time may be granted as determined by the Planning Manager. Resolution No. 2016 -xx Page 5 of 6 32A -20 The final map must be approved and recorded prior to issuance of building permits. 8. Development within the area of the map, including the single - family residence(s), is subject to development and permit fees in effect at the time of permit issuance. 9. Exhibits 4 and 5 contained within this staff report are intended for illustrative purposes only and do not constitute an approved architectural review of this project. The proposed single - family residence(s) shall be reviewed and subject to the architectural design, landscape, and development standards in place at time of Building plan check. 10. The project must be in compliance with the provisions of Site Plan Review (DP No. 2014 -36). 11. The final map and all improvements required to be made or installed by the subdivider must be in accordance with the design standards and specifications of the Santa Ana Municipal Code and the requirements of the State Subdivision Map Act, Resolution No. 2016 -xx Page 6 of 6 32A -21 32A -22 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2016 TITLE: RESOLUTIONS AFFIRMING BONUS FOR CITY MANAGER AND CLERK OF THE COUNCIL AND AMENDED AND RESTATED EMPLOYMENT AGREEMENT FOR CITY MANAGER (STRATEGIC PLAN NO. 7, 4, 7) 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 1. Adopt Resolution affirming performance bonus for the City Manager. 2. Adopt Resolution affirming performance bonus for the Clerk of the Council. 3. Approve the Amended and Restated City Manager Employment Agreement. DISCUSSION Annual employee evaluations are required and conducted by Council for the City Manager David Cavazos and Clerk of the Council Maria Huizar in accordance with their employment agreements. The Council conducted Mr. Cavazos's evaluation on January 19, 2016 in Closed Session and Council agreed that Mr. Cavazos, by a vote of 5 -2 (Martinez and Pulido dissented), that he is doing an excellent job as the City Manager. Ms. Huizar's evaluation was conducted by the Council on December 1, 2015 in Closed Session and Council agreed that Ms. Huizar, by a vote of 7 -0, that she is doing an excellent job as the Clerk of the Council. The proposed Resolutions for the City Manager and Clerk of the Council affirm the five percent performance bonus, attached for Council consideration (Exhibits 1 and 2). In addition, the City Council appointed an ad hoc committee to discuss contract amendments requested by the City Manager, The City Manager Employment Agreement contains three amendments and are provided for Council consideration (Exhibit 3): • Compensation for Sick Leave at 15% during the first year, 30% during the second year, and on or after February 16, 2018 entitled to cash out 50% of his unused accrued sick leave or conversion to Retirement Credit upon the same percentages. • Term to run until February 16, 2019 instead of October 21, 2017. • If City Manager dies during term of agreement his estate is entitled to accrued salary and benefits, but not severance. 55A -1 Resolutions Affirming Bonus For City Manager and Clerk of the Council and Amended and Restated Employment Agreement for City Manager February 2, 2016 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #7 — Team Santa Ana, Objective #4 (establish employee compensation that attracts and retains a highly qualified workforce), and Objective #7 (develop a culture of motivated and innovative leaders in the organization). FISCAL IMPACT The City Council's adoption of the Resolution affirms a five percent bonus in the amount of $8,196.40 for the Clerk of the Council and $17,085.53 for the City Manager. There are sufficient funds in City Manager Office Account #01103010 -61000 and Clerk of the Council Account #01107031 -61000 to cover these payments for Fiscal Year 2015 -2016. The City Manager's Employment Agreement does not include a salary increase and Sick Leave cash -out would not have a financial impact until the time of departure. APPROVED AS TO FUNDS AND ACCOUNTS 4 L \, 3Sgi N-z, T 't ' 1 s Francisco Gutierrez sg, Executive Director Finance & Management Services Agency Exhibit: 1. Resolution for City Manager 2. Resolution for Clerk of the Council 3. Amended and Restated Agreement 55A -2 CITY COUNCIL RESOLUTION NO. A RESOLUTION OF THE SANTA ANA CITY COUNCIL APPROVING AN AMENDED AND RESTATED CITY MANAGER EMPLOYMENT AGREEMENT AND AFFIRMING THE AWARD OF A PERFORMANCE BONUS. WHEREAS, City of Santa Ana ( "City ") and David Cavazos ( "City Manager ") entered into that certain Employment Agreement dated August 5, 2013 (hereinafter "Employment Agreement'), whereby Employee agreed to serve as the City Manager of the City; and WHEREAS, on or about September 2, 2014, the City and City Manager entered into a First Amendment to the Employment Agreement (hereinafter "First Amendment'), which amended certain provisions of the Employment Agreement, including provisions related to a housing allowance and the term; and WHEREAS, on or about January 19, 2015, the City and City Manager entered into a Second Amendment to the Employment Agreement (hereinafter "Second Amendment'), which amended certain provisions of the Employment Agreement, as amended by the First Amendment, including provisions related to benefits; and WHEREAS, the Employment Agreement provides that the City Council shall conduct an annual performance evaluation of the City Manager; and WHEREAS, the City Council conducted such evaluation and 1) awarded a performance bonus of 5% and 2) appointed an ad hoc committee and the ad hoc committee instructed the City Attorney to negotiate an amendment to the City Manager Employment Agreement to address requests made by the City Manager; and WHEREAS, the City Attorney prepared an Amended and Restated City Manager Employment Agreement to restate the previous agreements and reflect the recent negotiations; and WHEREAS, the City Council has reviewed the Amended and Restated City Manager Employment Agreement, a copy of which is attached hereto as "Exhibit A." NOW, THEREFORE, BE IT RESOLVED, that the Santa Ana City Council does hereby resolve as follows: Section 1. The City Council hereby approves the Amended and Restated City Manager Employment Agreement attached hereto and incorporated herein as "Exhibit A" and authorizes the Mayor to execute the Amended and Restated City Manager Employment Agreement. Section 2. The City Council affirms a performance bonus of 5% for the City Manager as provided for in the Employment Agreement. Exhibit 4= ` 55304.00000\24406235.1 55/x_3 City Council Resolution No. Page 2 Section 3. This Resolution shall take effect immediately upon its adoption. Section 4. The Mayor shall sign this Resolution, and the City Clerk shall attest and certify to the passage and adoption thereof. DO t Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney Sonia R. Carvalho, City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: COUncllmembers: CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2016 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on 55394.00000124406235.1 55A -4 CITY COUNCIL RESOLUTION NO. A RESOLUTION OF THE SANTA ANA CITY COUNCIL AFFIRMING THE AWARD OF A CLERK OF THE COUNCIL PERFORMANCE BONUS. WHEREAS, City of Santa Ana( "City ") and Maria Huizar ( "Clerk of the Council ") entered into that certain Employment Agreement dated July 20, 2009 (hereinafter "Employment Agreement'), whereby Employee agreed to serve as the Clerk of the Council of the City; and WHEREAS, the Employment Agreement provides that the City Council shall conduct an annual performance evaluation of the Clerk of the Council; and WHEREAS, the City Council conducted such evaluation and awarded a performance bonus of 5% on December 1, 2015 by a vote of 7:0. NOW, THEREFORE, BE IT RESOLVED, that the Santa Ana City Council does hereby resolve as follows: Section 1, The City Council affirms the performance bonus of 5% awarded to the Clerk of the Council as provided for in the Employment Agreement. Section 2. This Resolution shall take effect immediately upon its adoption. Section 3. The Mayor shall sign this Resolution, and the City Clerk shall attest and certify to the passage and adoption thereof. PASSED, APPROVED, AND ADOPTED this _ day of 20% ATTEST: Clerk of the Council APPROVED AS TO FORM: Exhibit 2. City Attorney 55A -5 55394.00000 \24427420.1 Mayor 'P�PM CITY OF SANTA ANA I: ►I ► 1 1 : ► 1 _ ,y1- 1I7LY -�I IZN �11!/►1 ►[T!]� �I I - R�]�IIllD ►I W.T"AW01 14LM Y This Amended and Restated City Manager Employment Agreement ( "Agreement ") is entered into as of the 2nd day of February, 2016 (the "Effective Date "), between the City of Santa Ana (hereinafter referred to as the "City ") and David Cavazos (hereinafter referred to as the "City Manager" or the "Employee "). City and City Manager/Employee are sometimes referred to in this Agreement as "Party" and collectively as "Parties." RECITALS WHEREAS, on October 21, 2013, the City Council appointed Employee as City Manager pursuant to the its authority under the Charter of the City of Santa Ana ( "City Charter "), WHEREAS, the City and Employee entered into an Employment Agreement effective October 21, 2013 wherein Employee would be employed as City Manager for the City of Santa Ana, WHEREAS, the City and Employee entered into a First Amendment of the Agreement on or about September 2, 2014, whereby the parties agreed to revise the term to extend the Agreement for an additional year and to revise the terms of the "Housing Allowance." WHEREAS, the City and Employee entered into a Second Amendment of the Agreement on or about January 20, 2015, whereby the parties agreed to provide certain executive level benefits related to a health savings plan and a 401(A) plan. WHEREAS, it is the desire of the City Council and Employee to amend the employment Agreement to add Compensation for Sick leave at varying rates over time or Conversion to Retirement Credit; extend the term of the Agreement from October 21, 2017 to February 16, 2019; and to add a provision to the Agreement that Employee's estate is entitled to accrued salary and benefits, but not severance if the Employee dies during the term of this Agreement. The parties further agree to combine the previous three amendments and restate the entire agreement into an Amended and Restated Agreement. as follows: NOW, THEREFORE, the above named Parties hereby mutually agree and promise 1. Term /Automatic Annual Renewal. This Agreement shall be deemed effective for a five (5) year and four (4) month term beginning on October 21, 2013 and terminating on February 16, 2019, unless terminated earlier in accordance with Section 9 hereof. This initial term will, pursuant to the provisions below, automatically extend from year to year unless City Council takes action to prevent the automatic extension. In the event the City Council does not want this Agreement to automatically extend, it Exhibit 3 55394.00000 \8170424.1 55A -7 will provide written notice to City Manager that the Agreement will not be extended and consequently will terminate as of the end of the current term. If action is not taken by City Council within three (3) months before the expiration of the initial term of this Agreement on November 16, 2018, this Agreement shall on February 16, 2019, automatically extend for one (1) year from February 16, 2019 until February 16, 2020. For each succeeding year that the City Council does not take action to extend or terminate this Agreement by three (3) months before the then current end of the Agreement, the Agreement shall automatically extend for an additional year. For example, if action is not taken by the City Council to extend or terminate this Agreement by November 16, 2020, the Agreement shall on that date automatically extend for one (1) year from February 16, 2021, to February 16, 2022, and if the City Council doesn't take action to extend or terminate this Agreement by November 16, 2021, it will automatically extend for one (1) year from February 16, 2022 to February 16, 2023. 2. Compensation. 2.1 Salary (a) Annual Salary City agrees to pay City Manager, and City Manager agrees to accept from City, as compensation for services rendered by City Manager pursuant to this Agreement, an annual base salary, commencing on the Effective Date, in the amount of Three Hundred Fifteen Thousand Dollars ($315,000.00) (hereinafter "Annual Base Salary "), payable in installment payments in the same manner and at the same times as salaries of other executive managers of the City are paid. The term "Annual Base Salary" as used in this Agreement shall also include any such adjustments approved by the City Council other than payments not eligible to be added to the City Manager's Annual Base Salary pursuant to the terms of any applicable salary resolution of City. The term "Monthly Base Salary" as used in this Agreement shall mean a sum of money equal to one - twelfth (1/12) of City Manager's Annual Base Salary as defined herein. (b) Right of Estate to Accrued Salary City agrees that if the City Manager dies during the term of this Agreement, his estate is entitled to accrued salary as of date of death as defined in section 2.1(a) under this Agreement. (c) Deferred Compensation City Manager shall receive as additional compensation added to his base salary and deducted therefrom pursuant to Government Code Section 53214, deferred compensation in the maximum annual amount permitted pursuant to Section 457 of the Internal Revenue Code at the time of execution of this Agreement, said amount consisting of the maximum Standard contribution and the Age 50+ contribution. 2 55394.00000 \8170424.1 55A -8 (d) Performance Bonus Each fiscal year, commencing with the fiscal year that starts on July 1, 2014, the City Council may grant to City Manager a performance bonus. Whether or not to grant a bonus and the amount of any such bonus shall be in the sole discretion of the City Council. The decision by the City Council regarding the performance bonus shall be made for each fiscal year at the time the City Council is providing the performance evaluation of City Manager required by paragraph 3 of this Agreement. It is the understanding and intent of the City and City Manager that performance bonuses are not reportable to the California State Public Employees Retirement System ( "CalPERS "), and are not to be included in the calculation of City Manager's retirement allowance. Performance bonuses are not added to the annual base salary. 2.2 Benefits 2.2.1 General Benefits (a) Applicable General Benefits In addition, and except as otherwise specified herein, City Manager shall receive all such other benefits that are applicable to executive managers of the City as of the Effective Date of this Agreement, including but not limited to medical insurance, dental insurance, long term disability insurance, life insurance, sick leave, holidays, vacation, bereavement and family illness leave, physical examinations, participation in retirement system and participation in the City's retiree medical program in the same manner as other City executive managers as described in Exhibit "A" attached hereto. (b) Right of Estate to Accrued Benefits City agrees that if City Manager dies during the term of this Agreement, his Estate is entitled to his accrued benefits as of date of death as defined in Section 2.2.1(a) under this Agreement. 2.2.2 Initial Sick Leave Bank (a) Sick Leave Accumulation Upon employment with City, City Manager shall be provided with an initial sick leave bank containing 80 hours of usable sick leave. This initial sick leave bank of 80 hours shall be for use by the City Manager under the applicable City policies and State and Federal laws. (b) Sick Leave Accrual Cash Out or Retirement Credit Upon last date of employment with the City, City Manager shall be entitled to cash out his accrued sick leave as outlined in subsection (1) or to elect a conversion of his accrued sick 55394.00000 \8170424.1. 55A -9 leave to a retirement credit outlined in subsection (2). (1) Sick Leave Accrual Cash Out (i) Between February 16, 2016 and February 15, 2017, City Manager will be entitled to cash out 15% of his unused accrued sick leave; (ii) Between February 16, 2017 and February 15, 2018, City Manager will be entitled to cash out 30% of his unused accrued sick leave; and (iii) On or after February 16, 2018, City Manager will be entitled to cash out 50% of his unused accrued sick leave. (2) Sick Leave Retirement Credit The City Manager can have unused accrued sick leave which he is authorized to cash out under the terms outlined in subsection (1) converted to additional service credit at the rate of 0.004 years of service credit for each day of unused sick leave (i.e., 200 days of sick leave equals .80 additional years of service credit). The City must report only those days of unused sick leave that were accrued by City Manager during the normal course of employment. In the event, the City Manager retires from City, this section applies to the City Manager only when his effective date of retirement is within four (4) months of separation from employment. 2.2.3 Initial Vacation Allowance Upon employment with City, City Manager shall be awarded 80 hours of vacation leave. City manager shall accumulate additional regular and management vacation hours in the same manner as other City executive managers. 2.2.4 Longevity Vacation City Manager shall accumulate Longevity Vacation at the maximum accrual rate for an employee having completed 20 years of service with the City. 2.2.5 Ca1PERS Membership As a "new employee" under CalPERS, City Manager will be enrolled in the 2% at age 62 benefit formula and shall be responsible for paying the corresponding employee contribution per Ca1PERS requirements as they exist today or as may be amended by the legislature. As of the effective date of this Agreement the applicable contribution rate is 6.75% on the first $136,440.00 of base salary. 2.2.6 Relocation Benefit City Manager shall be provided reimbursement for the actual costs required to relocate to California, i.e., moving expenses, not to exceed the sum of $7,500.00. Said reimbursement may include the costs or up to 2 visits to Orange County prior to moving to locate suitable housing. 4 55394.00000 \8170424.1 55A -10 2.2.7 Housing Allowance It is understood that City Manager intends to reside in the City of Santa Ana during his employment as City Manager, and that initially he will require a temporary residence while he is purchasing a permanent residence in the City. Further, it is understood that the City Council desires that the City Manager reside within the City of Santa Ana and believes that such residence would be of benefit to the City and enhance City Manager's performance as City Manager, and therefore, the City will pay City Manager the following allowances and assistance. (a) Temporary Housing Assistance City Manager shall be provided with reimbursement for the actual costs of temporary housing while City Manager seeks and obtains permanent Santa Ana housing in the sum not to exceed $3,000 per month and for a period not to exceed 12 months from the date of this Agreement. Prior to the 12 month maximum duration, said Temporary Housing Assistance shall cease upon City Manager closing escrow on the purchase of a local residence or the execution of a lease on a non - temporary residence. (b) Housing Allowance Upon the termination of the Temporary Housing Assistance provided for in Section 2.2.7(a), City shall pay City Manager a housing allowance in the sum of $2,000.00 per month up and until October 16, 2016. Said housing allowance shall be contingent upon City Manager residing within the City. 3. Performance Evaluation. The Mayor and the City Council are responsible for setting performance goals on an annual basis in consultation with the City Manager. The City Council shall review and discuss City Manager's performance in or around July of each year commencing in 2014. However, Employee acknowledges and accepts the fact that the City Council as Employer has the right to schedule and an evaluation session at any time in accordance with the notice and all other requirements of the Brown Act. 4. Bonds. City shall bear the full cost of any fidelity or other bonds required of City Manager under any law or ordinance. 5. Transportation and General Business Expenses. 5.1 Vehicle Provision City shall provide City Manager with a vehicle, as well as fuel, maintenance and liability insurance for said vehicle, for City Manager's use in commuting, in the performance of his employment duties and for incidental personal use. 5 55394.00000 \8170424.1 55A -11 5.2 General Business Expenses (a) City agrees to budget and pay for professional dues and subscriptions for City Manager necessary for his continuation and participation in national, regional, state and local boards, task - forces, conferences and meetings, associations and organizations desirable for City Manager's continued participation, professional growth, and advancement, and for the benefit of the City. (b) City agrees to budget and pay for travel and subsistence expenses of City Manager for professional and official travel, board and task -force meetings, and occasions to adequately continue the professional development of City Manager and to pursue necessary official functions for City. (c) City shall provide City Manager with the necessary technology tools, including and not limited to computer, software, cell phone and such other technologies as required by City Manager to perform his duties and to maintain communications. 6. Abuse of Office or Position. Pursuant to Government Code Sections 53243, 53243.1 and 53243.2, which became effective on January 1, 2012, if City Manager is convicted of a crime involving an abuse of his office or position, all of the following shall apply: (1) if Manager is provided with administrative leave pay pending an investigation, City Manager shall be required to fully reimburse City such amounts paid; (2) if City pays for the criminal legal defense of City Manager (which would be in its sole discretion, as it is generally not obligated to pay for a criminal defense), City Manager shall be required to fully reimburse City such amounts paid; and (3) if this Agreement is terminated, any Severance Pay and Severance Benefits related to the termination that City Manager may receive from City shall be fully reimbursed to City or void if not yet paid to City Manager. For purposes of this Section, abuse of office or position means either: (1) an abuse of public authority, including waste, fraud, and violation of the law under color of authority; or (2) a crime against public justice, including, but not limited to, a crime described in Title 7 (commencing with Section 92) of Part 1 of the Penal Code. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be personally served upon the other Party, or sent by United States Postal Service, postage prepaid and addressed to the appropriate Party as follows: If to City: City Attorney City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 6 55394.00000 \8170424.1 55A -12 If to City Manager: David Cavazos City Manager City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 Notice shall be deemed given as of the date of personal service or upon the date of deposit in the course of transmission with the United States Postal Service. 8. Duties, Acceptance of Appointment, Hours of Work, Regional Liaison. 8.1 Duties City hereby agrees to employ Employee as City Manager of the City of Santa Ana to perform the functions and duties specified in the City Charter of the City of Santa Ana, and to perform such other legally permissible duties and functions as the City Council may from time to time assign. 8.2 Acceptance of Appointment Employee hereby accepts the appointment as City Manager of the City of Santa Ana subject to all terms and conditions set forth in this Agreement. 8.3 Hours of Work It is recognized that City Manager devotes a great deal of time outside the normal City Hall office -hours schedule, and to that end, he shall be allowed to establish his work schedule, taking into consideration that he is responsible for the supervision of employees and has responsibilities to serve all departments of the City. 9. Termination. 9.1 At -Will Employee Employee shall serve at the will and pleasure of the City Council. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the City Council to suspend from duty, remove from office or otherwise terminate the services of City Manager at any time, at the sole discretion of the City Council, as provided in the City Charter. This Agreement may be terminated as follows. 9.2 Termination - Council Vote As required in Section 500 of the City Charter, the City Council may remove the City Manager by motion adopted by the affirmative votes of at least two- thirds (2/3) of the 55394.00000A8170424.1 55A -13 members of the City Council. At least thirty(30) days before such removal shall become effective, the City Council shall by resolution adopted by the affirmative votes of at least two- thirds(2 /3) of the members of the City Council state the reasons in writing for the removal of the City Manager. 9.3 Termination - Change in Form of Government If any of the governing policies pertaining to the role, power, duties, authority, or responsibilities of City Manager are amended to substantially change City's form of government, either by action of the City Council, a duly passed initiative measure or state legislation, City Manager shall have the right to terminate the Agreement. 9.4 Reduction of Salary or Benefits If the City Council reduces the Annual Base Salary or any other financial benefit of the City Manager in a percentage that is greater than the average reduction of base salary for all executive managers of the City, such action shall constitute a termination of this Agreement. 9.5 Resignation City Manager may voluntarily resign his position as City Manager, after giving City at least sixty (60) days written notice prior to the effective date of such resignation, unless such notice is waived in whole or part by the City Council. In the event the City Manager resigns from his employment with City, the City Manager shall not be entitled to any Severance Pay. 9.6 Severance In the event this Agreement is terminated pursuant to any one of sections 9.2, 9.3 or 9.4 of this Agreement, the City Manager shall receive a severance payment, in a lump sum, equal to twelve (12) months of City Manager's then monthly Base Salary ( "Severance Pay ") in accordance with the provisions of this Agreement. A Severance Pay payment shall be his sole remedy for termination under sections 9.2, 9.3 or 9.4 of this Agreement. The Severance Pay shall be paid after the City Manager executes a waiver and release agreement prepared by the City Attorney in a form substantially similar to that one set forth as Exhibit `B" to this Agreement. Notwithstanding any provision of this Agreement to the contrary, City may terminate City Manager's employment for cause at any time and without prior notice, and if City Manager is terminated for cause, he shall not be entitled to payment of severance compensation or any other compensation or damages. "Cause" shall include the following reasons: (a) Conviction of a crime, whether misdemeanor or a felony, involving moral turpitude. For purposes of this paragraph, a plea of nolo contendere shall also be considered a conviction. (b) City Manager is determined by a court of competent jurisdiction or the State of California Fair Political Practices Commission to have knowingly and unlawfully participated in a governmental decision in which he had a conflict of interest as defined in Government Code Section 87100, et seq, or Government Code Section 1090 et seq. 55394.00000 \8170424.1 55A -14 (c) Failure to follow a lawful directive of the Council after written notice of said failure is provided to City Manager approved by five (5) or more affirmative notes of its seven (7) members. (d) Continued abuse of drugs or alcohol that materially affects the performance of the City Manager's duties. (e) Repeated and protracted unexcused absences from the City Manager's office and duties. 10. General Provisions. 10.1 This writing constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior oral or written representations or written agreements on the subject matter hereof, which may have been entered into between the parties. No modification or revision to this Agreement shall be of any force or effect, unless the same is in writing and executed by the Parties hereto. 10.2 Each Party agrees and acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any Party, or anyone acting on behalf of any Parry, which are not embodied herein and that any agreement, statement, or promise not contained in this Agreement shall not be valid or binding on either Party. 10.3 If any provision, or portion thereof, contained in the Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected and shall remain in full force and effect. 10.4 This Agreement shall be governed by and construed in accordance with the law of the State of California. 10.5 This Agreement shall be construed as a whole, according to its fair meaning, and not in favor or against any Party. By way of example and not in limitation, this Agreement shall not be construed in favor of the Party receiving a benefit nor against the Parry responsible for any particular language in this Agreement. 10.6 Employee acknowledges that he has had an opportunity to consult legal counsel in regard to this Agreement, that he has read and understands this Agreement, that he is fully aware of its legal effect, and that he has entered into it freely and voluntarily and based on his own judgment and not on any representations or promises other than those contained in this Agreement. 10.7 This Amended and Restated Agreement may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one of the same instrument. 11. Intentionally Left Blank 9 55394.00000 \8170424.1 55A-1 5 12. Communications in the Event of Termination 12.1 In the event the City terminates Employee for any reason or no reason, the City and Employee agree that no member of the City Council or City employees acting on behalf of the City shall make any written, oral, or electronic statement to any member of the public, the press, or any city employee concerning the Employee's termination except in the form of a joint press release or statement, which is mutually agreeable to the City and the Employee. The joint press release or statement shall not contain any text or information that is disparaging to either Party. Either Party may verbally repeat the substance of the joint press release or statement in response to any inquiry. 13. Indemnification 13.1 City shall defend, hold harmless and indemnify City Manager against any tort, professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of any alleged act or omission occurring in the performance of City Manager's duties or resulting from the exercise of his judgment or discretion in connection with the performance of his duties. City shall not unreasonably refuse to provide for legal representation at City's expense. Legal representation, provided by City for City Manager, shall extend until a final determination of the legal action including any and all losses, damages, judgments, interests, settlements, fines, court costs, and the reasonable costs and expenses of legal proceedings, including appeals, and including attorneys' fees, and expert witness fees and all other trial and appellate costs, and other liabilities incurred, imposed upon, or suffered by such City Manager in connection with or resulting from any claim, action, suit, or proceeding, actual or threatened, arising out of or in connection with the performance of City Manager's duties. 13.2 City agrees to pay all reasonable litigation expenses of City Manager throughout pendency of any City- related litigation to which City Manager is a party, witness or advisor to the City. Such expense payments shall continue beyond City Manager's employment with the City as long as litigation is pending. Post - employment, City agrees to pay City Manager for reasonable consulting fees, travel expenses and other costs, when City Manager serves as a witness, advisor or consultant to City regarding pending litigation. [SIGNATURES ON THE NEXT PAGE] 10 55394.00000 \8170424.1 55A-1 6 IN WITNESS WHEREOF, the Parties have executed this City Manager Employment Agreement as of the day of February, 2016. EMPL�—O�Y�E'EE/ /CITY MANAGER David Cavazos CITY OF SANTA ANA Miguel A. Pulido Mayor ATTEST: Maria D. Huizar Clerk of the Council 55394.00000 \8170424.1 Approved as to Form: Sonia R. Carvalho, Best Best & Krieger City Attorney 11 55A -17 55394.00000 \8170424.1 Exhibit "A" General Benefits 12 55A -18 Exhibit `B" WAIVER AND RELEASE I, the undersigned, do hereby acknowledge and attest that I have read and understood section 9.6 of my Employment Agreement with the City of Santa Ana and hereby agree that by accepting twelve (12) months Severance Pay in the amount of $ [12 x current monthly compensation] I agree to waive all rights to further claims, remedies, or legal action against the City, its officers and employees. In exchange for receipt of the Severance Payment I and my representatives, heirs, successors, and assigns do hereby completely release and forever discharge the City of Santa Ana and its related entities and their present and former officers, directors, council members, agents, employees, attorneys, and successors (collectively, "Released Parties ") from all claims, rights, demands, actions, obligations, liabilities, and causes of action of every kind and character, known or unknown, mature or unmatured, which I may have now or in the future arising from any act or omission or condition occurring on or prior to the date this waiver is signed whether based on tort, contract (express or implied), or any federal, state, or local law, statute, or regulation (collectively, the "Released Claims "). Released Claims shall also include, but not be limited to, claims for wages or other compensation due, severance pay, bonuses, sick leave, vacation pay, life or health insurance, or any other fringe benefit. Employee knowingly and voluntarily waives any and all rights or benefits that he may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. By initialing below, the Employee acknowledges that he or she has read and understands this waiver and voluntarily and knowingly is waiving his right under Section 1542 to pursue unknown or unanticipated claims, rights, demands, actions, obligations, liabilities and causes of action of any kind. M Initials of Employee 55394.00 ON 170424.1 13 55A -19 Employee shall not file any claim, sue or initiate, against any Released Party, any compliance review, action, or proceeding, or participate in the same, individually or as a member of a class, under any contract (express or implied), or any federal, state, or local law, statute, or regulation pertaining in any manner to the Released Claims. Approved and Agreed to By: J 55394.00000 \8170424.1 14 55A -20 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 201E TITLE: PUBLIC HEARING e FINAL ENVIRONMENTAL IMPACT REPORT NO. 20116-011, AMENDMENT APPLICATION NO. 2014-04, GENERAL PLAN AMENDMENT NO. 201"3, DEVELOPMENT AGREEMENT NO. 2015-03 AND VESTING TENTATIVE TRACT MAP NO, 2015.03 FOR THE HERITAGE MIXED -USE DEVELOPMENT PROJECT PROPOSED AT 2001 EAST DYER ROAD — DYER 18 LLC, APPLICANT (STRATEGIC PLAN NO. 3, 2) CITY MANAGE CLERK OF COUNCIL USE ONLY: a• .+� .: Q As Recommended M As Amended M Ordinance an let Reeding ® Ordinance on 2"d Reading Implementing Resolution ® set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENCIED ACTION 1. Adopt a resolution certifying Final Environmental Impact Report No. 2015 -01 and approve the Mitigation Monitoring Program and Statement of Overriding Considerations. 2. Adopt an ordinance approving Amendment Application No. 2014 -04 for Specific Development No. 55 3. Adopt a resolution approving General Plan Amendment No, 2015 -03. 4. Adopt an ordinance approving the Development Agreement No, 2015 -03 as amended, 6. Adopt a resolution approving Vesting Tentative Tract Map No. 2015 -03 as conditioned, 6. Adopt a resolution finding the project to be consistent with the purposes of the State Aeronautics Act. i. Option to consider modifying proposed Development Agreement to direct the in -lieu housing fees as recommended by the Planning Commission. PLANNING COMMISSION ACTION At its regular meeting on October 12, 2015 by a vote of 5 :0 (Nalle & Verino absent), the Planning Commission recommended that the City Council approve The Heritage project, a mixed -use development on an existing industrial site at 2001 East Dyer Road located in the Light Industrial (M -1) zoning district. The Planning Commission added a recommendation to direct the in -lieu housing fees to a project proposed by AMCAL on East First Street as permitted by Section 41T 1004(c)(3) of the recently amended Housing Opportunity Ordinance. This recommendation was not included In the Development Agreement currently before the City Council, Should the City Council decide to approve this recommendation, Council may direct staff to modify the proposed 75A -1 EIH No, 2015 -01, AA No, 2014 -04, OPA No. 2015.03, DA No, 2015 -03 & VTTM No. 2015 -03 -- The Heritage Mixed -Use Development Project February 2, 2016 Page 2 Development Agreement to reflect this language. Additionally the Planning Commission recommended that the public Improvements exhibit presented to the Commission at the hearing be added to the Development Agreement (Exhibit A). The entitlements are being requested for The Heritage, a three- phased, mixed -use residential and commercial development proposed on the 18.8 -acre subject site. The applicant is proposing a development that would include 1,221 apartment homes, 12,675 square feet of retail commercial space and 5,415 square feet of restaurant space. In addition, the existing 366,000 - square -foot industrial building would be partially demolished, with 56,000 square feet of the building to remain and serve as office space for an existing tenant as well as future office uses. A total of 2,333 surface and structure parking spaces are proposed for the entire development. The sizes of the units will vary from 600 square feet for the studio unit to 1,441 square feet for the largest three bedroom unit, The architectural style proposed for this project is contemporary In nature, with the overall design Intended to Integrate the buildings, public spacers, and green spaces of the project Into a cohesive development. A wide menu of recreational amenities Is planned for the overall development, including a 1,26 -core central park with an outdoor theatre, public art/sculptures, a playground and walking paths that would connect to the open spaces along the northern and eastern boundaries of the project site. Courtyards, roof terraces, and plazas are also open space elements to be located within each phase, Half -sized colored plans are available for public viewing In the Clerk of the Council {office. DISCUSSION On October 12, 2015, the Planning Commission held a public hearing on The Heritage and recommended that the Council approve the project, which is a request by Dyer 18 LLC to construct a mixed -use residential, commercial and office project. Since the Planning Commission's action, minor amendments have been made to the development agreement. These include; changing the name of the owner to Heritage Village OC; modifying the Term of the agreement from 5 years with a 5 -year extension at the discretion of the Executive Director to 6 years with an automatic 3 year extension provided the first two phases have been deemed complete; requiring staff level design review during the 3 -year extension period and requiring the recordation of an avigation easement on the property, The evigation easement Is. intended to prevent claims, actions or lawsuits for nuisance or interference with the use of the property such as noise, sound, vibration, dust or other environmental effects related to aircraft operations. Staff is recommending that the City Council approve these modifications as part of the action on the development agreement, 6_irport Land Woo Commission The Heritage development was required to be reviewed by the Airport fund Use Commission (ALUC) for a determination of consistency with the Airport Environs Land Use Plan (AELUP) per Section 21676(b) of the California Public Utilities Code due to the applicant's request to rezone the property and amend the general plan land use designation of the site. in late September, staff 75A -2 EIR No. 2015 -01, AA No, 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015-03 — The Heritage Mixed -Use Development Project February 2, 2016 Page 3 formally requested that the item be placed on the October ALUC agenda, On October 15, 2015, the ALUC held a public hearing on the project. At the conclusion of the hearing, which included public testimony and commission discussion, the ALUC found the project to be inconsistent with the AELUP (Exhibit B). In response, staff requested approval from the City Council to prepare findings of overruie and to forward the findings to the ALUC upon their completion, which the Council granted on November 3, 2015. Public Utilities Code Section 21676 permits the City Council, by a 213 vote, to overrule the ALUC's determination if it finds that the proposed project is consistent with the purposes of the State Aeronautics Act, The Act states; "It is In the public interest to provide for the orderly development of each public use airport in this state and the area surrounding these airports so as to promote the overall goals and objectives of the California airport noise standards... and to prevent the creation of new noise and safety problems." To assist in the preparation of the overrule findings, the City secured the expertise of Barbara E. Lichman, Ph.D., Chair of the Aviation, Airports and Transportation Practice Group of the firm Buchalter Nemer. Dr. Lichman, in cooperation with staff from the City Attorney's Office and Planning Division, have prepared findings of overrule for the project. As required by Public Utilities Code Section 21676, the City sent the proposed findings to the ALUC and to the Caltrans Division of Aeronautics on December 16, 2015, 45 days before City Council action. The ALUC then had 30 days to respond to the City findings. On January 15, 2016, the City received a comment letter from the ALUC on the overrule findings (Exhibit C). The letter affirmed earlier comments from the ALUC and their staff stating that residential uses under an aircraft approach centerline for the airport would not coexist with the overflight of aircraft and that noise complaints would be generated from affected residents, As of late January, no comments have been received from Caltrans. The Federal Aviation Administration (FAA) has also reviewed the project for consistency with their requirements and standards, The FAA has confirmed that the project would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities (Exhibit D). Based on staffs review, the Heritage development project will not adversely impact the operations of the airport, the future development plans that exist for the airport, the approaches to airport runways, create noise concerns, or create public health, safety or welfare concerns. Additionally, the project falls within a level of acceptable risk considered to be a community norm. As part of the modifications to the development agreement, the applicant has agreed to record an avigation easement on the development. As mentioned earlier In the report, the easement is intended to prevent claims, actions or lawsuits for nuisance or interference with the use of the property such as noise, mound, vibration, dust or other environmental effects related to aircraft. The City will be the benefitted party in the avigation easement, which can be assigned by the City to a third party, 75A -3 EIR No, 2015-01, AA No. 2014.04, OPA No, 2015 -03, DA No. 2015 -03 & VTTM No, 2015-03 — The Heritage Mlxed -Use Development Project February 2, 2010 Page 4 STRATE9IC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objective #2 (create new opportunities for business /job growth and encourage private development through new General Plan and Zoning Ordinance policies). FISCAL IMPACT There is no fiscal impact associated with this action. VF;rb vttreportWhe Heritage \The Heritage PIR, M. DAB QPA,T7M. ®e Exhibit; A. Planning Commission Staff Report Q. Airport Land Use Commission (ALUC) Determination C. Airport Land Use Commission Response Letter D, Federal Aviation Administration Determination E. Resolution addressing Recommended Action 1, 3, and F. Resolution addressing Recommended Action 6 G. Ordinance addressing Recommended Action 2 H. Ordinance addressing Recommended Action 4 75A -4 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: OCTOBER 12, 2015 TITLE: PUBLIC HEARING — FINAL ENVIRONMENTAL IMPACT REPORT NO. 2015 -01, AMENDMENT APPLICATION NO. 2014-04, DEVELOPMENT AGREEMENT NO. 2015 -03, GENERAL PLAN AMENDMENT NO. 2015-03 AND VESTING TENTATIVE TRACT MAP NO. 2015-03 FOR THE HERITAGE MIXED -USE DEVELOPMENT PROJECT PROPOSED AT 2001 EAST DYER ROAD (STRATEGIC PLAN NO. 3, 2) Prepared by Vince Freg080 _ E cutiv irector PLANNING COMMISSION SECRETARY APPROVED • As Recommended • As Amended ❑ Set Public Hearing For DENIED Applicant's Request ❑ Staff Recommendation CONTINUED TO -- Acting Planni g Mays ger Planning Commission Direction. As proposed, the project would alter the existing General Plan and zoning policies for the site. While this change in direction is quite substantial, it may be consistent with the new direction the Planning Division is taking during the upcoming General Plan and Zoning Code amendments. Request of Applicant Pam Sapetto, on behalf of Dyer 18 LLC, is requesting approval of several entitlements for The Heritage, a proposed mixed -use development at 2001 East Dyer Road. Specifically, the applicant is requesting the certification of an environmental impact report, an amendment application (zone change) to change the current zoning of the site from Light Industrial (M -1) to the Specific Development No. 88 (SD -88) zoning designation, a General Plan amendment to the Land Use Element to change the land use designation from Industrial (IND) to District Center (DC), a development agreement and a vesting tentative tract map. Proiect Location and Site Description The subject site is an 18.84 -acre, irregular shaped parcel of land located adjacent to the northwest corner of Dyer Road and Redhill Avenue. The property contains a single industrial building that is approximately 355,000 square feet in size that was constructed in 1972. Access to the site is provided from both Redhill Avenue and Dyer Road. Regional access would be provided from the Newport -Costa Mesa (SR -55) Freeway via the Dyer Road interchange. The building is currently occupied by a variety of uses, including a data center that is leasing approximately 10,000 square feet, and various temporary uses utilizing a small portion of the existing warehouse space. Approximately 430 parking spaces are currently located on -site. EXHIBIT A 75A -5 EIR No, 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 2 The site is surrounded by a variety of industrial and office development to the north, south and west that are located in the City of Santa Ana, and both the Tustin Legacy development in the City of Tustin and industrial development in the City of Irvine to the east (Exhibits 1, 2 and 3). Proiect Description The applicant is requesting entitlements for The Heritage, a mixed -use residential and commercial development on the subject site. Specifically, the applicant is proposing a development that would include 1,221 apartment homes, 12,675 square feet of retail commercial space and 5,415 square feet of restaurant space, In addition, the existing building would be partially demolished, with 56,000 square feet of the building to remain as office space for an existing tenant as well as future office uses. A total of 2,333 parking spaces are proposed for the entire development. As proposed, the project is intended to be built in three phases (Exhibit 4). A total of 17 different floor plans are proposed for this development. The floor plans will range from studio units, live /work lofts, and one, two and three bedroom units. The sizes of the units will vary from 600 square feet for the studio unit to 1,441 square feet for the largest three bedroom unit. The unit mix is predominantly smaller units, with 68 percent of the unit's one bedroom or less, with only 32 percent of the project consisting of larger two and three bedroom units (Exhibit 5). The architectural style proposed for this project is contemporary in nature. The architectural design is intended to integrating the buildings, public spaces, and green spaces of the multi- phased project into a cohesive development. Each building would include a unique, but related, contemporary and modern architectural expression. The ground floor retail uses and common areas would be developed with pedestrian - oriented frontages. Building materials include a combination of plaster, stone veneer and composite wood siding on the exterior elevations. The proposed colors are earth tones, including off - white, beige, brown, grey color shades. Staggered rooflines and building articulation would be used to provide visual relief from Dyer Road and Redhill Avenue. Finally, the project will be designed to be sustainable and environmentally responsible and will, at a minimum, meet the LEED Silver certified designation (Exhibit 6). A wide menu of recreational amenities is planned for the overall development. A 1.26 -acre public central park would be developed at the northwestern portion of the project site. The central park area would include an outdoor theatre, public art /sculpture, a playground and walking paths that would connect to the open spaces along the northern and eastern boundaries of the project site. The open space along the northern and eastern boundaries of the project site would include a putting green, a walking /running trail with seating, and a dog run. In addition, the site would also include pedestrian /bicycle paths to provide for non - vehicular onsite circulation. These amenities are in addition to the courtyards, roof terraces, and plazas proposed within each phase. 75A -6 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No, 2015 -03 October 12, 2015 Page 3 Phase I The first phase of the project would consist of 335 apartment homes within two five -story apartment buildings wrapping a parking structure. This phase would be built on the south side of the parcel facing Dyer Road. Five different unit types and nine different floor plans are proposed for the project, with the units ranging from studio to three bedroom units. This phase also includes approximately 9,700 square feet of commercial and restaurant space. The units would be wrapped around a 6Y2-level garage that will contain 646 parking spaces, with another 18 spaces on the private drive. Parking is provided at a rate of approximately 1.9 parking stalls per unit, which includes guest and commercial parking (Exhibit 7). Also to be built within this phase is a two -story, 56,000 square foot office building that will house the current data center tenant as well as other future office uses. A total of 102 parking spaces have been allocated to this component of the project. This phase also includes an extensive menu of project amenities. Exterior amenities would include five courtyards, a fitness center and clubhouse on the ground floor, a lounge on the Fourth Floor, and a rooftop lounge facing Dyer Road. The courtyards would include a combination of enhanced landscaping, water features, seating and public art. Seating would also be provided within the public plaza areas that are adjacent to the commercial and restaurant uses to be located at the northwest corner of the project. Phase II The second phase of the project would consist of 403 apartment units situated within two five -story buildings wrapping a parking garage. This phase would be built on the west side of the parcel with the southern elevation facing Dyer Road. Six different unit types and nine different floor plans are proposed for the project, with units ranging from studio to three bedroom units. In addition, approximately 4,100 square feet of commercial and restaurant space would be incorporated into this phase of the project. The units would be wrapped around a 6 -level garage containing 722 parking spaces, with another 15 spaces to be located on the private drive. Parking for this phase has been provided at a rate of approximately 1.83 parking stalls per unit, which includes guest parking (Exhibit 8). This phase also includes an extensive menu of project amenities. Exterior amenities include three courtyards, a fitness center, two lounges and a clubhouse on the ground floor, and a rooftop lounge facing Dyer Road. The courtyards would include a combination of enhanced landscaping, water features, seating and public art. Courtyard One would also include a pool and spa as well as enhanced amenities. An outdoor seating area will also be provided within the public plaza area that is adjacent to the commercial and restaurant uses. 75A -7 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 4 Phase III The third and final phase of the project would consist of 483 apartment homes within three five - story apartment buildings wrapping a parking garage. This phase would be built at the northern area of the parcel, with the eastern elevation facing Redhill Avenue. Six different unit types and nine different floor plans are proposed for the project. The project units would consist of studio, live /work, and one to three bedroom units. The units would be wrapped around a 6%2 -level garage that would contain 809 parking spaces, with another 21 spaces to be located on the private drive. Parking for this phase has been provided at a rate of approximately 1.72 parking stalls per unit, which includes guest parking (Exhibit 9). An extensive menu of project amenities is planned for this phase. Exterior amenities include six courtyards, a fitness center and a clubhouse on the ground floor, three lounges on the Fourth Floor, and a rooftop lounge. The courtyards would include a combination of enhanced landscaping, water features, seating and public art. Courtyard One would also include a pool and spa as well as enhanced amenities. An outdoor seating area would also be provided within the public plaza area that is adjacent to the commercial and restaurant uses. Table 1 below provides a summary of the residential component of the proposed project. Table 1 Project Summary Plan Units Proposed Percent of building Square Footage Studio 327 27% 600 Live/Work 9 1 % 1,095 One bedroom 376 31% 722 -786 One bedroom w /den 116 9% 884 Two bedroom 1 359 29% 1,365 -1,441 Three bedroom 34 3% 1,014 -1,201 Total 1,221 100% 4 n/a Various interior amenities would be required for all residential units. Typical amenities within each unit include granite, composite stone or corian counter tops; hardwood floors or equivalent in the living, dining and kitchen areas; stainless steel appliances; tiled bathtub and shower walls with corian counters; utility closets with individual laundry hook -ups and private decks for the units. Development amenities include an entry lobby with concierge services, a resident lounge with high -end furniture, a fitness center with top -of- the -line exercise equipment, secured resident covered parking, contemporary storefront glazing in the public areas, granite counter tops in all common areas and a building security system. 75A -8 El No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 5 The landscaping concept for The Heritage has been designed to complement the proposed structures. The concepts will assist in unifying the structures through a consistent landscape program. In addition to the 1.26 -acre central park, a system of bicycle and pedestrian trails would be incorporated into the project site. Elements such as water fountains, special hardscape and landscape features such as outdoor seating, lighting, and special pavement treatments will highlight the retail area and sidewalks. A diverse and drought tolerant landscape palette will also be provided throughout the project to accent and enhance the various architectural elements of the project (Exhibit 10). Protect Backaround In 1972, the City Council approved Minor Exception No. 1972 -22, which allowed the construction of a 356,000 square foot industrial building on the site with less than required parking. Since its completion, the building has been occupied by a variety of large -scale warehouse and furniture manufacturing uses, with a bicycle manufacturing facility the prior long -term use that vacated the site in the early 2000's. More recently, the office component of the building has been occupied by a data center, which utilizes approximately 10,000 square feet, with various short term uses occupying the warehouse section of the building. General Plan and Zoning Analysis The General Plan land use designation for the site is Professional and Administrative Office (PAO), which allows predominantly office uses along with support commercial and retail uses. The proposed project is not consistent with this General Plan land use designation. The applicant is requesting a General Plan Amendment for this project that would change the current land use designation to District Center (DC) with a maximum Floor Area Ratio (FAR) of 1.70, which would make the project consistent with the General Plan. The subject site is located in the Light Industrial (M -1) zoning district. The M -1 zoning designation allows uses such as warehouses, wholesale operations and manufacturing uses as well as support commercial businesses. The project site is not consistent with the zoning designation. An amendment application (zone change) to change the zoning designation to a Specific Development (SD) is proposed for this project, which would make the project consistent with the new SD zoning designation. It must be noted that while the project is inconsistent with the current General Plan and Zoning designations, this area of the City is currently being considered for rezoning by staff to a high density mixed -use zone. 75A -9 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTl'M No. 2015 -03 October 12, 2015 Page 6 AnalvsIs of the Issues Dyer 18 LLC is requesting entitlements to construct The Heritage, a mixed -use development proposed on an 18.84 -acre parcel of land in southeast Santa Ana. The applicant is proposing a project that is inconsistent with the development pattern and land uses in this area of the City. The following subsections of this staff report provided analyses for each of the proposed action items, Environmental Impact Report The California Environmental Quality Act (CEQA) requires the preparation and approval of an environmental impact report (EIR) for this project. The environmental issues analyzed in the EIR include Aesthetics; Air Quality; Cultural Resources; Geology, Soils and Seismicity; Greenhouse Gas Emissions; Hazards and Hazardous Materials; Hydrology and Water Quality; Land Use and Planning; Noise; Population and Housing; Public Services; Parks and Recreation; Transportation and Traffic; and Utilities and Service Systems. In accordance with CEQA, a draft EIR was first circulated for review and comment to public, local, regional and state agencies, and interested parties on July 17, 2015 for a 45 -day review period. On August 24, 2015, a public hearing was held on the document to obtain input from interested members of the public. By the close of the 45 -day review period on August 31, 2015, a total of eight written comment letters on the document were received. The City has evaluated the comments received from persons or agencies that reviewed the EIR. In accordance with CEQA, each public agency and interested party that commented on the draft EIR was provided with a response to its comments at least 10 days prior to the Planning Commission public hearing. The Responses to Comments document, the Mitigation Monitoring Program and the Draft EIR constitute the Final EIR for The Heritage (Exhibit 11). Given there are some unavoidable and adverse impacts generated from the proposed project, which are discussed in greater detail below, Findings of Fact and a Statement of Overriding Considerations have been prepared for the project. The EIR identified two significant unavoidable impacts associated with this project. These impacts pertain to air quality and traffic and transportation. Unavoidable air quality impacts consist of long- term emissions of reactive organic gases (ROG) and nitrogen dioxide (Nox) that would result from the vehicle trips generated from the project that would exceed the applicable thresholds established by the South Coast Air Quality Management District (SCAQMD). Traffic and transportation impacts include significant impacts to four intersections and four SR -55 freeway ramps. Although the developer will contribute its fair share amount of funds to mitigate traffic generated by the project, there is no specific funding program or construction time frame for these improvements. Further, the improvements are not under the approval and enforcement jurisdiction of the City as they involve coordination with the Cities of Tustin and Irvine as well as Caitrans. 75A -10 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2016 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 7 As a result of these impacts that cannot be mitigated to a less than significant level, adoption of a Statement of Overriding Considerations is required prior to approving the project. A Statement of Overriding Considerations is the process through which decision makers balance the economic, legal, social, and technological or other benefits of the proposed project against its unavoidable environmental impacts. General Plan Amendment To allow the construction of a mixed -use development on this parcel, a General Plan amendment is required. Currently, the land use designation for this site is Professional and Administrative Office (PAO), which allows office development and ancillary commercial uses. This project will require an amendment to the Land Use Element to amend the General Plan Land Use designation of the site to District Center (DC) with a General Plan floor area ratio of 1.70 (Exhibit 12). The floor area ratio was derived by calculating the square footage of the development (excluding parking structures) along with the square footage of the existing structure that will remain. Staff has identified a concern with the inconsistency of the project with the existing Land Use Element of the General Plan, The Professional and Administrative Office land use designation of the site, along with approximately 300 acres of land located on the east side of the Newport -Costa Mesa (SR -55) Freeway, are primarily intended to provide an environment for office and business park development in an area of the City where office, research and development, and industrial uses are the predominant land uses. Maintaining these uses in the City is key to promoting and encouraging major employment centers at locations which have a low vacancy rate, are located in a stable industrial area, and contain little to no heavy industrial businesses that adversely impact other nearby businesses, Additionally, areas such as this section of the City provide a rich employment base for many residents of the City and those in the region who work in the area. The City has recently initiated the process to update its General Plan, which is the blueprint for future development. A key component of the update process is the identification of sites for future development, including but not limited to mixed -use development. Staff has identified the southeast section of the City, including the project site, as a potential area for mixed -use ( residential /commercial /industrial) development, with residential development contemplated at a maximum of 100 units per acre. This area will be studied in greater depth as the update process continues, with a final determination on the eventual land use designation expected in the next one to two years. If approved, the project could support several goals and policies of the recently adopted Housing Element. First, the project would be consistent with Goal 2, which encourages diversity of quality housing, affordability levels, and living experiences that accommodate Santa Ana's residents and workforce of all household types, income levels and age groups to foster an inclusive community. Second, the project would support Goal 4, to provide adequate rental and ownership housing 75A -11 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 8 opportunities and supportive services. Further, the project would be consistent with Policy HE -2.2 to create District Centers with high intensity, mixed -use urban villages and pedestrian oriented experiences and Policy HE -2.4 to facilitate diverse types, prices and sizes of housing. Amendment Application The subject site was zoned Light Industrial (M -1) when it was annexed by the City in the early 1960's. In the mid 1960'x, the property was rezoned to Limited Manufacturing (LM), a designation that allowed a combination of professional office and industrial related uses. In 1998, the City Council adopted Amendment Application No. 1998 -02, changing the zoning of the site back to Light Industrial (M -1). At that time, the Council was concerned with the number of industrial zoning designations in the Code, the range of uses permitted in the industrial zones, and had a desire to simplify the industrial regulations. Given the current zoning is M -1, a zone change to a specific development designation is proposed (Exhibit 13). Staff has identified concerns with the zoning inconsistency of the proposed project. The subject site has a zoning designation of Light Industrial (M -1). Light Industrial zoned areas of the City are characterized by uses that manufacture, process, assemble, package and /or warehouse products. Residential uses such as those proposed at the site are inconsistent with this zoning designation and are not a permitted use at this location. One of the primary foundations of zoning is to ensure compatibility with industrial uses and minimize their impacts to residential areas in order to protect residents from the effects of industrial uses. Approval of a residential project in an area of the City that is 100 percent office/ industrial will very likely lead to complaints associated with incompatibility of land uses, including noise and truck traffic. Further, recent land use decisions by Irvine for the Irvine Business Complex, for Tustin and Santa Ana have reaffirmed each jurisdiction's commitment to minimize the intrusion of new residential development sites into existing industrial clusters. Nonetheless, as mentioned earlier, the Planning Division is contemplating a new zoning designation for the area that is much more consistent with the proposed project. If the zone change is approved, a series of site- specific objectives, policies and development standards will be used to guide the development of the proposed project. Specifically, the SD -88 document will include a menu of development standards such as setbacks, parking, height and signage and allow the exclusive entitlement of the mixed -use project. The SD document has been framed to be consistent with the proposed project and prohibits future modifications to enlarge or reduce the size of the project (Exhibit 14). Approval of the proposal would allow for the construction of a mixed -use development in an "urban village" setting that would provide a variety of neighborhood services and amenities to the residents. If approved, the zone change would need to be approved in conjunction with the proposed General Plan amendment. This would result in a project that is consistent with the goals and objectives of City's General Plan land use designation of District Center. The project will promote an urban 75A -12 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 9 development where office, retail and residential activities would coexist in a mixed -use setting. The mixed -use project will contribute to the promotion of jobs housing balance in this area of the City. Also, the project will include a variety of land uses that will enhance the City's economic and fiscal viability. Further, the project will contribute towards the preservation and improvement of the character of the southeast section of the City. Finally, the development, through the construction of the proposed public improvements and site amenities, will contribute to the enhancement of a unique development site. Development Agreement The development agreement is a legal contract between the developer and the City that defines the terms and nature of development proposed for the project site. This agreement establishes development intensity, permitted uses and standards for the term of the agreement. In exchange for the City vesting approval of the proposed project, the development agreement requires certain improvements and public benefits (Exhibit 15). The primary deal points of the agreement include: The right to build the project as entitled for a period of five years, with an opportunity for one five -year extension. 2. Committing one -half of one percent for the installation on the site, at a prime location(s) visible to the public, of permanent work(s) of public art. The work(s) of art shall be in place no later than the first certificate of occupancy for the project and shall be maintained in perpetuity by the property owner. Further, the art may be phased to be installed at each phase of the project. 3. Allowing the project to be completed in three phases, with the private streets and park to be developed in the first phase of the development. 4. Executing an avigation easement, with the City and John Wayne Airport as benefited parties, to prohibit any and all claims, actions or lawsuits of any kind for nuisance or interference with use and enjoyment of the property, including but not limited to noise, sound, vibration or other environmental effects related to aircraft operations. 5. Requiring the project to comply with the current Housing Opportunity Ordinance requirements, including the option to pay an in -lieu fee of $9.35 per square foot of habitable space since this is considered to be a "pipeline project" As of Friday, October 2nd, 2015, the development agreement had not been signed by Dyer 18 I_LC. Staff and the applicant are working to finalize the agreement. 75A -13 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 10 Vestino Tentative Tract Ma The applicant is proposing to subdivide the 18.84 —acre parcel into six lots: Three residential parcels, one office parcel, and two common area parcels. Based on a review of the tentative map by the Planning Division and Public Works Agency, the project has been designed to be in compliance with the applicable development standards found in Chapters 34 (Subdivision) and 41 (Zoning) of the Santa Ana Municipal Code and with the proposed SD -88 zoning document. However, in order to ensure Lot 4 (office parcel) complies with the City's various ordinances and has street frontage, a condition of approval has been included that requires Lot A (private street) to be designed to the City's private street standards. Approval of the tract map will be consistent with the goals and policies identified in the City's General Plan. Policy No. 1.3 of the General Plan Land Use Element encourages high - density residential development within the City's District Centers. Further, Policy No. 1.4 promotes the maintenance and fostering of a variety of residential land uses in the City (Exhibit 16), Additional Information The proposed project would convert a mostly vacant industrial development into a new mixed -use site and additional revenue to the City. A fiscal analysis prepared by Stanley R. Hoffman and Associates noted that a project net annual surplus to the General Fund after build out of the project could be approximately $943,000 and annual sales tax revenue of almost $53,000. The study also noted that only 10 percent of the estimated retail taxable purchases would be captured in the City because the project is located near the City boundary, no city retail facilities are nearby, and several large shopping centers are located in the cities of Tustin and Irvine. Airport Land Use Commission In accordance with State law, the initiation of a General Plan amendment, along with the project's proximity to the John Wayne Airport, requires the project to be submitted to the Airport Land Use Commission (ALUC) for a determination of consistency with the Airport Environs Land Use Plan (AELUP) for John Wayne Airport. To comply with this mandate, the City referred the project to the ALUC in September 2015, with an expected hearing date in October. Staff does not anticipate any issues from the ALUC. However, in the event the ALUC determines that the project is inconsistent with the AELUP, the City Council would need to overrule the ALUC determination and approve the project. This would require a two- thirds vote in support of the project and the adoption certain findings of fact. In an effort to address any ALUC concerns, the project will install "Notices of Proximity to the Airport' throughout the property as well as incorporate a similar notice within each lease that is completed. 75A -14 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 11 Public Notification The project site is not located within the boundaries of an established Neighborhood Association. Staff has notified all parties that have expressed an interest in the project by mail a minimum of 10 days prior to the public hearing to ensure they were notified of the meeting and to see if there were any areas of concern. The project site itself was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to all property owners and occupants within 500 feet of the project site. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. CEQA Analysis As part of the City's permitting process, the proposed project is required to undergo an environmental review in accordance with the California Environmental Quality Act (CEQA). In accordance with CEQA, the recommended actions have been reviewed through an environmental impact report, EIR No. 2015 -01. Sections 15080 through 15097 of the State CEQA Guidelines (Article 7) guide the process for the preparation of an environmental impact report. The EIR, as required by CEQA, contains 1) an initial study; 2) a project description; 3) a description of the environmental setting, potential environmental impacts, mitigation measures for any significant effects, and consistency with plans and policies; and, 4) names of preparers. The mitigation measures included in this EIR are designed to reduce or eliminate the potentially significant environmental impacts described herein. The scope of the EIR evaluates the proposed project's effects on the following resource topics: aesthetics, air quality, biological resources, cultural resources, geology and soils, greenhouse gas emissions, hazards and hazardous materials, hydrology and water quality, land use and planning, noise, population and housing, public services, recreation, transportation and traffic, and utilities and service systems. The City prepared a draft EIR and published the Notice of Availability (NOA) in the Orange County Register as well as posted the NOA at the Orange County Clerk's office on July 16, 2015. The City circulated the draft EIR for a 45 -day public review between July 17, 2015 and August 31, 2015. The draft EIR was available for public review at the Santa Ana City Hall, the City of Santa Ana Main library, and on the City's website. This EIR is intended to provide a forum to air and address comments pertaining to the analysis contained in the draft EIR and to provide an opportunity for clarification, corrections, or minor revisions to the EIR as needed. Comments were received during the public review period. Pursuant to Section 15088 of the State CEQA Guidelines, the City, as the lead agency for the project, has reviewed all comments received on the document. 75A -15 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 12 As a result of the environmental analysis, two significant impacts were found from the construction of the proposed project that pertains to air quality and traffic. These items have been discussed in greater detail within the body of this report. Mitigation measures have been provided to address potential environmental impacts, with a list of these mitigation measures found within the attached Mitigation Monitoring and Reporting Program. Mitigation measures have been outlined to address potential impacts on air quality, noise, transportation and traffic, utilities and service systems, and climate change (Exhibit 17). Strategic Plan Alignment Approval of this item supports the City's efforts to meet Goal No. 3 Economic Development, Objective No. 2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies). Conclusion Based on the provided analysis, staff recommends that the Planning Commission provide direction on the following applications: Certification of Final Environmental Impact Report No. 2015 -01 and the mitigation monitoring program, findings and statement of overriding considerations; General Plan Amendment No. 2015 -03; Amendment Application No. 2014 -04 for Specific Development No. 88 (SD -88); Development Agreement No. 2015 -03; and, Vesting Tentative Tract Map No. 2015 -03 as conditioned. x- Vince Fregoso, Acting Planning Manager VF:jm Mraport$ \The HeritageSR2015- 01.101215.pa 75A -16 EIR No. 2015 -01, AA No. 2014 -04, GPA No. 2015 -03, DA No. 2015 -03 & VTTM No. 2015 -03 October 12, 2015 Page 13 Attachments: Exhibit 1 — Vicinity Map Exhibit 2 — Land Use Map Exhibit 3 — Site Photo Exhibit 4 — Overall Site Plan Exhibit 5 — Floor Plan Exhibit 6 — Building Elevations Exhibit 7 — Building /Site A Site Plan Exhibit 8 - Building /Site B Site Plan Exhibit 9 - Building /Site C Site Plan Exhibit 10 - Landscape Plan Exhibit 11 — Final EIR Exhibit 12 — General Plan Amendment Exhibit 13 — Zoning Map Exhibit 14 — Specific Development No. 88 Exhibit 15 — Development Agreement Exhibit 16 — Vesting Tentative Tract Map Exhibit 17 — Mitigation Monitoring Program 75A -17 SO-69 Ml R1 R1 ; � R1 "� d M1 M1 r. m Mt 5D -69 Tl'ilI a M1 R1 R1 la Iti SD -69�� �` M/ M1 u u` Ri M1 M1 M7 R1 I21 M1 M1 k r M1 WARJUi AV � R7 I� ii +r cry or rums" 1 'uz i gl„ M1 M7 � _ j� SD-2 I! 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W«« 2 / � v g « a, 75A-35 RS CL \) q � w � � \ \ S 2 . . \ \ � \ & Page 3 of 9 75A -36 a w Q W Q J h !L! LU W Vd J J n: T Pa e4ofg 79A-37 C-4 z LLI Z :5 CL LU cn Lij CL to in z m Page 5 of 9 75A -38 N R u R H 8 a a m z D m 0 b h d R1 C 9 '3 m (n M W r V J W LL O Q�/ w ®W Yd J J n r Ali �f'l Ili �Y 6 �i li ire t. ti �4 t. I < Page 6 of 9 75A -39 mU L F °o m m C '0 m r U U h U m e 4 m 7 U U 10 W 0 0 K U m c 7 C3 U) * W T" � J W F— LL 0 O/�/ \i W Y� U) J J n r r9 'I A J Page 7 of 9 75A-40 LO N Page 8 of 9 75A-41 (i) M T m 00 48 Page 9 of 9 75A-42 ro U) C" iA EXHIBIT 11 Final EIR —The Heritage Mixed Use Project is available for review at the following: http://www.santa-ana.orq/pba/planniiiq/TheHerita.ge.asp Planning and Building Agency Planning Counter, First Floor 20 Civic Center Plaza Santa Ana, CA 92701 Santa Ana Public Library 26 Civic Center Plaza Santa Ana, CA 92701 75A -43 City of Santa Ana General tan Land Use Element 1998 (City of Santa Aria Planning Division >r r fro* ' Adapted February 2, 1998 (Re(nrmcttled January 2010) 'Phv roilowiog is a chrrn dingy oP ttic approved general plan amendments that have been incorporate( km this docutnent since dye comprebcusive update ai the General plan Land Use Dement adopted by tire Santa Ana City Council February 2, 1998 (GlIA 1997 -05): GPA 2015 (pending) GPA 2014-02 (October 21, 2014) GPA 2014.01 (June 3, 2014) CPA 2011.03 (March 10 2012) GPA 201102 (June 6, 2011) CPA 2010-01 (June 7, 2010) GPA 200802 (July 20, 2009) GPA 2M7.03 (May 18, 2009) GPA 2M8.0I (Marl S. 2008) CPA 20040.7 (February 2, 2008) GPA 2M7 02 (June 18, 2007) GPA 2007,01 (March 19, 2007) GPA NOW (October 2. 2005) GPA 2005-DI 10s oember 5, 2005) GPA 2M"a02 (October 17, 2005) GPA 2004-01(Aprli 5, 2005 as passed by the voters of Santa Ana) GPA 200494 (July 19 2004) EXHIBIT 12 75A -44 CPA 2004.08 (July 8, 2004) GPA 200302 (June 16 2003) GPA 2003.01 (February 18, 2003) GPA 2002 -01(5optemhor 3, 20021 GPA 2002 03(Augtel 19, 2002) GPA 2001- 03(Febmmy l9, 2002) GPA 200102 (January 7, 20021 CPA 2000 -09(hlay 7.2801) CPA 200008 (February 5. 20011 GPA 209003 (Ooromber 4. 2000) CPA 200002 (November 24 2000) GPA 1999 -02 (October 18. 1999) GPA 1999-01 (August 18, 1999) CPA 1808.04 (0ctoon 5, 1998) GPA 199005 (Seplember 21, 1990) GPA 1998.01(May 4. 1998) LAND USE. ELEMENT Goal 6 Reduce residential overcrowding to promote public health and safety. Policy 61 Support legislative and regulatory changes to laws and codes concerning safe occupancy standards. Policy 6.2 Support reducing the number of units in multiple- family developments by allowing the property owner to combine two or more units into a larger unit. Policy 63 Prohibit new development and buildingalterations which can readily be converted to improper occupancy. Policy 6.4 Target educational programs concerning overcrowding to tenants, owners, and property managers. Policy 6.5 Promote health and safety programs which address the occupancy of housing units and overcrowding, LAND USE PLAN The Land Use Plan is comprised of three components that direct and regulate land use in Santa Ana. These include it Land Use Map, development intensity standards, and adopted Specific Plans. These trey components establish a framework for land use and development in the City. The Land Use Plan indicates the location, types, and extent ofdevelopment and land uses throughout Santa Ana. It consists of a map which designates land use categories and their relative location, as well as development intensity standards for each category. The Land Use Plan is further supported by Specific Plans which correlate to the Land Use Plan. DEVELOPMENT INTENSITY STANDARDS As required by State law, the Land Use Element also establishes standards for development intensity, These standards ensure that the types of development permitted under each land use designation are well understood by tlue property owner, decision - makers, developer, and the,, eneral Public. Development intensity refers to the size or degree of development possible within it particular hand use category. The development intensity standard used for nonresidential development is floor area ratio, which is the ratio ofthe building's floor area to the total area of the lot on which the building is located. The development intensity standard for residential develnptnents is "units per acrd' which is a measure of the number of units allowed for each acre of land - with the exception of Metro East District Center, Transit Village District Center, Downtown District Center, Harbor Corridor District C enter, Heritage District Center and Urban Neighborhood 75A -45 C11 , O SAHFA A: GENLRAi rtAE LAND USE ELEMENT areas. To encourage a dynamic mixture of residential, office and commercial uses, within these areas both building intensity and residential density is based on floor area ratio and zoning development standards. In calcutatingeither the allowable floor area or the allowable residential density, it is the City's policy to not allow upward rounding. The Land Use Plan is illustrated in Exhibit 2. Additional information concerning the Land Use Plan and the land use designations is provided in Table 1 (Land Use Development Intensity Standards), and in the Appendix. Table 1 Development Intensity Standards District Centerz(DC) Densilylintensity Standards Land Dse Designation (dulacre - FAR)' 1 U(i 1. '1aH -0,014 , Downtown District Center Low Density Residential (LR -7) 7 du /acre Low- Medium Density Residential (LMR -11) 11 dulacre Medium Density Residential W-1 5) 15 dulacre District Centerz(DC) 90 dulacre and FAR 1.0 Other District Center (Midtown, MacArthur Place, etc.) FAR 1.0 -2.0 . Heritage District Center FAR 1.7 Downtown District Center FAR 3.0 Metro East District Center FAR 3.0 Transit Village District Center FAR 5,0 Harbor Corridor District Center FAR 5.0 Urban Neighborhood Transit Zoning Code Area FAR 0.5 -1.5 Harbor Corridor FAR 3.0 Professional and Administrative Off lea (PAO) FAR 0.5.1.0 General Commercial (GC) FAR 0.5 -1.0 One Broadway Plaza District Center (OBPDC) ° FAR 2.9 Industrial FAR 0,45 Institutional (INS) FAR 0.5 Open Space (0) FAR 0.2 Notes The Intensity standards shown refer to the theoretical maximum amount of development permitted for each land use designation (du- dwelling units; FAR -floor area ratio), Development must also adhere to zoning regulations, and/or specific plan requirements. z The District Center and Urban Neighborhood land use designations permit both residential and non - residential development. a Commercial intensities may vary. Baseline FAR is 0.5. Specific areas allowing greater Intensities are Indicated In Exhibit A -3. ° One Broadway Plaza District Center land use designation permits office, restaurant and ancillary retail for a master planned development. *Refer to Appendix for description of Land Use designations. CITY OF SANTA ANA GENERAL PLAN! 15 75A -46 1 i H i c 0 a m a co n t w 75A -47 ry E C � N a m a C J MIKI e i 1 C O � t: � c rn @ $ 8 s E rc i o£ o m � nnnn ®nm��n� 75A -47 ry E C � N a m a C J MIKI e i 1 CANE USE ELF.NuEFir LAND USE PLAN IMPLEMENTATION 'Ib effectively achieve the broad range of goals outlined for the City's Future growth and development, a variety of plains, programs, and regulations must he relied upon. This section of the Element discusser these tools, and how they correlate with implementation of the City's land use goals. DEVELOPMENT INTENSITY STANDARDS 'Cable A -1 surarnarizes the development intensity standard (breach of the General Plan designations, and provides land use distribution by acreage for the land usc. The intensity standards for the categories permitting residential development are expressed in density, measured in "units per acre," or floor area ratio and zoning development standards in the case of certain Mixed Use land use designations. The intensity standards for non - residential development are expresser.) as "floor area ratio" or FAR. The FAR concept is illustrated in Exhibit A -3. The intensity standards in concert with the zoning and development standards regulate the massing, form and building size. Table A -'1 Development intensity Standards Land Use f Densityltntensity Standards Low Density 7 du /acre Low- lvledium Density 11 dulacre - -- Medium Density 15 dufacre q4, 1111rt.(i(;t. [IBM Open Space rioter: du- dwelling unit, FAR - floor area ratio * Residential development is not a permitted use. CnY OF SAPITA A14A GENERIAI. FLAO 90 dUlacre and FAR 1.0 -2.0 FAR 1.7 FAR 3A "Alf) FAR 5.0 FAR 5.0 FAR 0.5.1.5 FAR 16 FAR 0.5 -1.0 FAR 0,5 -1.0 FAR 2.0 FAR 0.45 FAR 0.5 FAR 0.2 75A -48 LAND LISE ELEMENT The City established development intensity standards in 1988, for nonresidential land use designations. The standards measure intensity through the use of floor area ratios. The floor area ratios proposed for the City's major commercial corridors are expected to remain in place over the life of the Land Use Element. Those areas of the City proposed for the most intensive levels of development include district centers, professional and administrative office districts, and several other commercial centers with a unique character, or special development concerns. Some of these areas correspond to those for which Specific Plans have been prepared. "The proposed floor area ratio(s) for most of the City's commercial corridors allows structures of two to three stories with surface parking. The major development areas -the District Centers and Professional /Administrative Office Districts along Tustin Avenue and East First Street -allow mid -rise and high -rise buildings with structured parking. These areas are expected to generate the highest level of development activity in the City as centers of commerce. These areas are listed in Table A -2 and are shown in Exhibit A -4. The floor area ratios indicated in TableA -2 are the maximum building intensity allowed for development. Table A -2 Key Area- Floor Area FAR 1 MalnPiace 2J 2 Place 2.54 3 _City _ - - -- ;North Main _ Streot � 1.5 4 North Broadway 5 Museum District 1,5_ 6 Hutton Development ._ 1.0 7 Civic Center Spec ifle Development Plan 110 8 Midtown � Plan 0,5 -1.0 9 Civic Center — — -- 1A 10 Downtown 3.0 11 Drange County Register 1.15 12 Xerox Center Development_ 3.29 13 First Street/Tustin Avenue 1.0 14 Bentall Center Development 1.5 15 2720 Hotel Terrace Drive 1.0 16 1951 East Carnegie Avenue 0.55 17 4040 West Carriage Avenue 0.47 18 Lake Center Development 0,72 19 South Coast Metro to 20 MacArthur Place North 2.0 21 — MacArthur Place South 1.0 22 PacTelOffice 1.5 23 Metro East 3.0 24 TransltVillage 5.0 25 Town & Country Manor 1.27 26 Harbor Mixed Use Transit Corridor 5.0 27 Heritage 1.7 A -17 CITY OF SANTA A14A GENERAL PLAN 75A -49 E 8 > U) LL S' §lj� 29ai Ilommull ......... 2 I V ell 75A-50 R LAND UfSF EL.EMFMT Commercial The Land Use Plan identifies three land usedesignations thatencourag'e a variety ofofhce, retail trnd commercial enterprises to serve the community. The Professional /Administrative Office (PAO) designation applies to those areas where professional and /or administrative offices are predominant, or where such development is being encouraged. Land included in this designation is found primarily near the Civic Center, and along the First Street and Tustin Avenue Corridors in close proximity to freeways. There are other smaller PAO areas in the City such as along North Broadway and along portions ofeast and west Seventeenth Street. A total of614.2 acres is included in this land use designation. T'he floor area ratio intensity stanclard applicable to this land use designation ranges from 0.5 to 1.0. The Professional and Administrative Office areas are intended to provide a unique environment for office development in those areas of the City where office uses are the predominant land use. The purpose for maintaining and supporting these areas exclusively for Office and office - related uses is to encourage major employment centers at locations which significantly lessen the impact to the City's local street system. The First Streetflustin Avenue office corridor between the Santa Ana (I -5) and Costa Mesa (SR -55) Freeways serves this purpose. In addition, the orderly, well - maintained quality of existing development supports u continuation of these areas as functional office /laliployr tent centers. The Professional and Administrative Office designation includes a range of floor area ratios to differentiate development intensity and character in relation to adjacent land uses. The areas with a FAR of 0.5 are not major, office centers, hot rather have an established character of lower intensity garden office and professional service uses. These areas are typically adjacent to tow density residential neighborhoods, or are converted residential office uses. Office development along- East Fourth Street, between Grand Avenue and the Santa Ana Freeway, is typical of this low -rise office character. `I'he PACT area located adjacent to the Civic Center contains a range Of office clevelOpment intensity which supports the City's functional role as the government center of the County. The types of uses typically located in the PAO district include the following Professional and administrative offices /office parks; Service activities such as copy centers, courier services, travel agencies, and rc^staurants when such uses are an integral component ofa plartncd office development; and Professional uses such as accountants, attorneys, doctors, engineers, and insurance brokers. 75A -51 CnY OF 'Al PA 4Hl� GHIF!RAt prltr [AND U8r ELENNEhn Mixed Use The Land Use Plan provides for two distinct mixed use land use designations. These designations allow 1br hash vertical and horizontal mixed use developments, with an emphasis on linkages to a range of transportation options: The District Center (DC) land use designation includes the major activity areas in the City. Seven areas of the City, tootling 665.5 acres, are designated as District Center. The intensity standard for the District Center designation ranges from a floor ratio of 1.0 to 5.0. District Centers are designed to serve as anchors to the City's commercial corridors, and to accommodate major development activity. District Centers are to be developed with an urban character that includes a mixture of high - rise office, commercial, and residential uses which provide shopping, business, cultural, education, recreation, entertainment, and housing opportunities. Residentiat developments within some District Centers are allowed at a density of up to 90 units per acre when developed as an integral component ofa master planned mixed use project. In Harbor Corridor, Metro East, Downtown, and Transit Village District Centers residential development intensity is based on a combination of floor area ratio and zoning overlay and /or development standards. Some District Centers serve as major retail and employment centers locally and regionally, and should include development which promotes the City as a regional activity center while creating an environment conducive to business on a regional scale. District Centers in Santa Ana include the hollowing: a The Main Place /City Place District Center includes a regional shopping center and office cornplex, as well as high intensity housing and mixed -use development. The Museum District located between the Downtown and klainPlace /C:ity Place District Centers is proposed as a major aftice /ctdttu-al ceruer which will be developed over the next 15 to 20 years. The area will focus upon the. expanded tRawerS Museum, the Discovery Science Center and the construction of additinmrl museums and cultural centers. The Downtown District serves as one of the CoungI "s major employment and governmental operations centers complemented with a mix of "residential, commercial, and services uses to enhance its urban vibrancy. Emphasis onserrets that accommodawallmodes oftransport.Lion, including mass transit, pedestrian and bicyclist is key in this urban setring. ,Arll. dt, 01ER1'tHtIH 75A -52 LAND USE ELEMENT The South Coast Metro District serves as it regional retail shopping area which includes a range of commercial services and office projects. • The MacArthur Place District Center contains an existing office /hotel complex and a prOpOSed major mixed use project which will include professional offices, supporting commercial, and mid and high -rise residential components. • The Metro East District is envisioned as a vibrant urban village with a balance of office, residential, and service uses. Pedestrian and transportation linkages are key in this urban setting. • The Transit Village District is envisionecl as a vibrant intense urban village with. a balance of employment centers, residential and service uses. Pedestrian and transit linkages to the Santa Ana Regional Transportation Center is key in this district. • The Harbor Corridor Mixed Use Transit Corridor creates a vision for a more livable, sustainable setting through higher intensity housing and mixed use development, convenient access to transit, complete streets, and amenities that promotes active lifestyles. • The Heritage District allows for mixed use development with higher density residential and supportive commercial and office uses within proximity to surrounding employment centers. District Centers are considered to be the City's "major development areas." The most intense development in the City is targeted to these areas. The Tustin Avenue corridor is it major development area even though it is not a designated District Center. Thus area has developed over the years as a prime office corridor and employment area. The PAO designation facilitates the continued development of this area with high intensity, high duality regional office projects. • The Urban Neighborhood (UN) land use designation applies to primarily residential areas with pedestrian oriented commercial uses, schools and small parks. The Urban Neighborhood allows for a mix of residential uses and housing types, such as mid to low rise multiple family, townhouses and single family dwellings; with some opportunities for live -work, neighborhood serving retail and service, public spaces and use, and other amenities. Either vertical or horizontal integration of uses is permitted based on zoning standards, with an emphasis on lying together the uses with pedestrian linkages and street frontages. Street connectivity is desirable, allowing for it high degree of walkablity, transit options, and other forms of transportation including pedestrian and bicycle travel. CItv OF Sad ,T+; AMA GEt ERAL t'Gli I 75A -53 x_73 Exhibit A -5 Major Development Areas 1,61IUE?VVr,Vk UL .J T STJ >iG, pp r o k F. I# t AND USE REmErl i LAM A, AMM AY G 0 L eIN I - mairiplace 7 Tustin Avenue Corridor City Limits 2- Museum Usti ict 8 -Metro East 3- Downtown 9 - Transit Village 4- One Broadyway Plaza 10- Harbor Mixed-Use Corridor 5 - SOLIth(.0,15t Matra 11 -The Heritage 6 - ivlar.Arthur Place I I ( OF S/il 11 A .ANA (�Fl IFRAL RAI I A I 75A-54 : � 7Irm A 1, 1 SAN IA rtARA AV z— ST 4' 9 7- - WAWN6111N AV .1 LIVU: OWL TOM .111A ANA al I 3 . I fNLSTI UT . . . . . . . . . MCFAMN AV T- MCFADDRI Alf. ii EDINGFR AV tP WARBEIR AY. tz It 0" S LTf20 5 AIJO. All Ys AMM AY G 0 L eIN I - mairiplace 7 Tustin Avenue Corridor City Limits 2- Museum Usti ict 8 -Metro East 3- Downtown 9 - Transit Village 4- One Broadyway Plaza 10- Harbor Mixed-Use Corridor 5 - SOLIth(.0,15t Matra 11 -The Heritage 6 - ivlar.Arthur Place I I ( OF S/il 11 A .ANA (�Fl IFRAL RAI I A I 75A-54 LAND USE ELEMENt interagency Development Review Committee (ITC) to ensure consistent and comprehensive application ofCity regulations and policies for all projects. Redevelopment Plans. The City will apply redevelopment tools associated with the implementation ofthe adopted redevelopment plans, as appropriate. The City will encourage the further development of industrial, commercial, and residential projects in suitable locutions to strengthen the City's tax and employment base. • Special Studies. In certain instances, it special study may be rcgLtired to address it particular issue. fn these cases, a specific eff-brt to identify staff resources needed to conduct the appropriate investigation and analysis will be identified. • Zoning Code Review. The zoning code serves as it primary tool used by the City to regulate development. The City will develop it program to revise the Zoning Ordinance to ensure that development regulations and standards are consistent with community needs and high quality development-. The City will initiate appropriate changes to the ordinance to ensure, where appropriate, conformity between the Land Use Element and "Zoning Map. LAND USE PLAN BUILDOUT As indicated previously, the City of Santa Ana has been almost completely developed for many years. As it resuh, any new development will necessarily consist of redevelopment and infill development on the remaining vacant and underutilized parcels. Many parcels with nonresidential land use designations will never be developed to the maximum intensity permitted under the General Plan. Table A -4 indicates the development possible under the build -out of the Land Use Plan. The build -out for residential land uses considered two scenarios. Effective build -out for residential development is calculated by addingthe 21,011 units possible in the areas designated as District Center and Urban Neihborhood to the existing 74,588 units presently Pound in the City per Census 2000. Theoretical build -oat for residential development considered the development possible ifall ofthe areas designated as residential were developer) according to the permitted Land Use plan intensities. Since the Land Use Element does not contemplate the elimination of existing housing in the City, the effective build -out figure represents a more realistic estimate of future residential development. As indicated in T.ableA -4, three ofthe non - residential laud use designations have a range in FAR intensities. For the non-residential land use designations, effective build -out considered the development possible under the lower range of FAI intensities while theoretical build -out considered the upper FARrange.'1'ypically, parking and landscaping requirements will result in significantly Tess floor arelu for commercial and industrial developments than thatwhich is permitted under the General plan. Crrr OF SANTA At 1A GENEVAt PLAN b, 3?. 75A -55 tAND USE ELEMF.P,n As indicated in TableA- 4,between 55,362 to 95,5991aottsing tirlltS are allowed by the Land Use Plan.The additional units which presently exist in the City beyond the maximum number permitted under the theoretical buitclout scenario are a reflection ofthe higherdensiey rindtiple- family developments constructed in the 1970's and 1980'x. However, the purpose ofthe Land Use Plan as it applies to the residential areas is to preserve and maintain the stability of existing neighborhoods, regardless of the character ofdeveloptnent. The intent of the Plan is not to create any displacement, nor decrease existing development densities. Rather, it is to ensure a safe, healthy, and livable environment for City residents. Existing residential development entitlements are protected through this Land Use Element, applicable Zoning regulations, and sections of the City code pertaining to legal nonconforming uses. The Land Use Element's implementation may result in an increase in the amount of commercial, office, and industrial development in the City. As indicated in Table A - =4, up to 33,267,199 square feet of commercial and office development, and X2,199,991 square feet of industrial development are possible under the effective capacity parameters of Land Use Plan A� "ia lU� �J $:��d ti �, grhiCiW. PL ^fl 75A -56 LAND USE F.I.EMEW Table A-4 Land Use Plan Build-out Capacities Intensity/ Effective Bullefoull Theoretical Land Use Acres Density Buildout Low Density Residential LR,7 6,4160.1 7 dollop 45,221 do Low Medium Density Residential LMR-11 420.6 11 Woe 4,627 do Medium Density Residential MR-15 367.6 15 du /ac 5,514 do Subtotal 7,248.3 96,599 do 55,362 du District Center Down-town DC 62.5 FAR 3.0 2,057,824 at 1,661 do 2,057,824 at 1,661 do Metro East 00 98.3 FAR 3.0 3,245,185 at 5,551 do 3245,185 at 5,551 do Transit Wing 6 DC 51.4 FAR 5,0 402,864 at 2,761 do 402,864 all 2,761 do Harbor Corridor OC 125,0 FAR 5,0 1,46,155 St. 2,029 do 1,836.155 si 2,029 on Heritage OG 18.8 FAR 1.7 54,090 sf. 1,221 do 54,000 sf 1,221 sf Others 00 309.5 90 du /ac 11,955,583 at 3,017 do FAR 1.0-2.0 23,764,534 sf : 3,017 do Urban Neighborhood UN 271.1 FAR 0.5-1.5 If sf 4,771 do 856,076 a( 4,771 do Subtotal 936.6 20,407,950 sf, 21,011 lof 32,216,901 at 21,011 sf Professional & Admin. Office PAD 614.2 FAR 0.5-1.0 13,376.406 sf, 26,752,809 at General Commercial GG 888.3 FAR 0.5-1.0 19,347,607 sf 38,695,202 at One Broadway Plaza District Ctrl OBI)DO 4.3 FAR 2,9 543,193 at 543,193 sf Subtotal 1,506.8 33,267,199 ru 66,534,397 sl Industrial IND 2,162.8: FAR 0.45 42,199,991 sf 42,199,991 at InstilutuntaI5 INS 796.3 FAR 0.2-0.5 6,937,758 sf 17,344,394 at Open Space 05 1 01 7.8 FAR 02 8,867,509 at 13,1167,509 at Subtotal 1,814.2 15,805,267 at 25,211,903 af FAR =floor iiil rLu'--dweltring Imit; S.1=8chare (Eist Colt four -area-).' Acreage s-hown In table o'ces hot include made in right at -way. I Effective capacity for non -residential development assumes development possible order the Iowa( range of FAR Intensity standards with (tie exception of the i East District Center, Transit Village Dishict Centel, Downtown District Cantor, Heritage Disloict Center, and Urban Neighborhood areas. The Harthareoredor District Center, Metro East Dishict Center, Transit Village District Center, Downtown District Center, and Urban Nonglanumood areas allow a range of intensity for mixture of residential and non - residential development brand on the zoning development, standards- Residential effective capacity was calculated by adding the 21,01 t units possible in the District Center and Urban Neighborhood with the existing 741,588 (Cancer; 2000) housing units. 'Land use designation permits both residential and non - residential deVelopullea. Build-oust assumes 90% of land area will be developed as commercial and 10% will be developed as residential; ivitli the exception of Town and Country Minor project moviciod for continuum of core and housing seniors 'Land use designation permits high intensity office development with ancillary retail use. IMS table has been leveled 10 Correspond with the CIS Land Use Mar, illustrated in Exhibit 2. CITY Ql­ SAi,11A 4NA k,AJIERAI PlArl 75A-57 z R1 ERI R1 '. M1 e. n' RI R1 RT R1 M1 R1 RI R1 M1 R1 MINE mi SD -69 M1 M1 M1 SD -69 11311 R M1 SD -6911 `� 1� c` 3 o-rr 7M1 M1 FmlN Mt Mi` _ ji SD -8 II 11 r� it Mi M1 M1 c,tY or n,.m r,n a M1 5643 i / C"s' i Mi M1 M Mi rypm�1 y PROJE S D -12 T- 1111 Srm CS - ITat ffi M1 �r `-- P5 bone 011 ;n9e'. -; : II Ml tgSR -88 r M MT. M1 \ F �w R , AMMry 1 Al cmutALACddG1LNRALT CR CCMMWALi DF9PIlAL M-4000 EMALLLOTBNClEFAMILYf�E.. JI -8 PAWNGMMIIRCATION CC GCV6dJMEMCSmn m MOFAMII 057 CCMMSUALMUTHMAIN M1 UGHrINDUSRML m MUL'IINEDINSTYMUL7IAE C7 COMMUNII OWMERLAL M2 HEAWINDUS(AAL FAMILY R23DE1'CE C1 -MD LOMM.COMMUCAUMUMM 0151IdGT MO MIUTAVOPEPATIONS PA ETIEU�NAFAMMENTS C2 GKALGOMMFJUAL 0 OF 1&AGE FE FSOMALERATE C3 UNTFALFUSNn P IAa rMCNAL 9 S=MFlCDWEL., ENT C A C6YlAAl@75PI@aSARIISTMLLAGE FTA R NMCDMMUMTYDFh OFMBJT S' EPMFICi7Al C4 R.ANNFD'31CPa, NGC9dlPit RU PLANNED II DeAL FMM C5 ARIB1ALfX7MMEFOAL RI 81`IMMMILYF£30 NTIAL FOR 15- 1/AA14- 4/DA15 -3 ��1FN GPA 15- 3 /VTTM 15 -3 pr ' THE HERITAGE - - =500 FET-7 1 1000FEEP 2001 EAST DYER ROAD P L A N N I N G A N D B U I L D 1 N G.. A G E IN C_ Y____ EXHIBIT 13 75A -58 SPECIFIC DEVELOPMENT PLAN NO. 88 The Heritage SECTION I — APPLICABILITY OF ORDINANCE The Specific Development zoning district No. 88 (SD -88) for The Heritage project site is authorized by Chapter 41, Division 26 Section 41 -593 et seq. of the Santa. Ana Municipal Code. SD No. 88 contains the specific standards and regulations contained in the residential . and commercial districts, as herein amended, for the purpose of establishing land use regulations and standards. All other applicable chapters, articles, and sections of the Santa Ana Municipal Code are in effect unless superseded by regulations contained in this ordinance. SECTION 2 — PURPOSE The Specific Development Plan. No. 88 for The Heritage mixed -use development consists of standards and regulations established for the purpose of protecting the health, safety, and general welfare of the people of the City of Santa Ana by promoting and enhancing the value of property and encouraging the orderly development of the property. The Heritage Mixed Use Specific Development Plan No. 88 (SD -88) sets forth the development and design criteria for a development consisting of approximately 18.84 acres. The purpose of this specific development plan is to permit flexibility in site planning and design to respond to market conditions while assuring high quality development. Specific Development Plan No. SD -88 specifically establishes for the property the following: Permitted uses. Development standards, including building height limits, required setbacks, panting requirements, landscaping provisions and enforcement policies. - Public Park requirements Maximum development in &msity. Objectives The objectives of The Heritage mixed -use specific development ,plan include provision of the following: 1. Development of a mixed -use project within a major freeway corridor. 2. Promotion of the City's image as a regional activity center. 3. Pedestrian access between commercial uses and residential neighborhoods which are in close proximity. EXHIBIT 14 Page 1 of fi 75A -59 4. A clean and safe environment for the City's residents, workers and visitors. 5. Pedestrian fhendly and walkable streets between the residential, commercial and office uses, thereby reducing the use of vehicles. 6. A visually harmonious development as viewed both internally and externally. 7. Flexibility in development in response to market conditions while achieving overall City and community goals. SECTION 3 — Uses permitted in Specific Development No. 88 The following uses are pennittedn1 the SD -88 district: (a.) Multiple- family dwellings (b) Live /work lofts (c) Retail and service uses (d) Restaurants, cafes and eating establishments (e) Office uses (f) Other uses as deemed compatible by the Planning Manager or designee SECTION 4 —1lses subiect to a conditional use permit in Specifie Development No. 88 (a) Establishments open at any time between the hours of t2:00 a.nx. and 7:00 a.m. (b) Establislunents selling alcoholic beverages (c) Laamdrornats SECTION 5 — Maxianaun permitted buildine iutensi The maximum authorized building intensity for The Heritage is 2,209,227 gross square feet (including the parking garages) or 1,495,301 square feet (exclusive of the parking garages) for the mixture of uses in the project, The maximum number of residential units for the project is 1,221. The maximum allowable office area is 56,000 gross square feet. The maximum square footage for the retail and restaurant components is limited to 18,090 gross square feet. SECTION 6 — Minimum lot area in Specific Development No, 88 Developable lots for the project shall have a minimurn lot area of 1.66 acres. Page 2 of 6 75A -60 SECTION 7 — Minimum street frontage in Specific Develoument No. 88 Developable lots shall have a minimum street frontage of at least 200 feet. SECTION 8 — Building height in Specific Development No. 88 No structure shall exceed 100 feet in height, as measured from the lowest adjacent grade of a. structure to the top of the structure, SECTION 9 — Lot coverage in Specific Development No. 88 No more than 60 percent of the lot shall be covered by structures. SECTION 10 — Development standards in Specific Development No. 88 The Heritage development shall be built as shown on the approved project plans included as attachments to the SD. The plans shall govern in the event there is a conflict between the SD with the project plans. In addition, the following standards are applicable to the project: (a) Setbacks. (1) A minimum setback. of 20 feet shall be provided between the property line and buildings on Redhill Avenue (2) A minimum setback of 12 feet shall be provided between the property line and buildings on Dyer Road. (3) A minimum setback of 10 feet shall be provided along the northern and western internal property lines (4) A mininuim 10 foot setback shall be provided tlhc property line and buildings fronting an interior street (b) Parking and Circulation. The minimum off street parking requirements fc r the project are as follows: 1) A total of 1.71 parking spaces per unit 2) One guest space for every 10 unit 3) One space per 200 square feet for retail and restaurant uses 4) One space per 550 square feet for office uses (c) Pedestrian. Walkways and Open Space. The project will provide a public park, trails and similar open spaces at a minimum of six acres. The Pedestrian paseos and walkways shall be provided as shown on approved plan. Page 3 of 6 75A -61 (d) Walls /Fences. A solid block wall with a minimum height of eight feet shall be constructed along the north and west property lines. (e) Landsegin> Detailed landscaping plans shall be submitted to and be approved by the City of Santa Ana Planning Division prior to issuance of a building permit and installed as required in the approved phasing plan. The landscape plan shall include approximately 3 t percent (315,456 square feet) of open space (courtyards, common area amenities, roof terraces and perimeter plazas and open space) within the project site including the Central Park with an outdoor theatre and putting green and Par Course/Walking Trail located along the northerly end of the site, Private open space recreation and amenities for residents shall include a resort style saltwater pool and spa, private cabanas, fire pits, dog park with washing stations, outdoor barbeque and lounges, fitness area, community center with billiards, shuffleboard, table tennis, kitchen demonstration area for cooking classes and a screening room, tennis and basketball courts and children's play area, Each building shall have a common area rooftop deck with outdoor kitchen and seating areas. (f) Architectural and Design FeatuiLm (1) Exterior materials. Exterior materials and finishes for the project shall comply with the approved materials board submitted for the project. All trash enclosures and similar ancillary structures shall match the texture, material and color of the building. (2) Hacdscaane materials. Enhanced paving materials shall be installed at the driveway entrances, the project main entrance and the public park area. The actual paving materials shall be approved by the Placating Division. (3) Lighting standards /fixtures. The light fixtures are to integrate design elements of the building and landscape architecture. Lighting is to be designed to confine the direct rays of the artificial lighting within the boundaries of the development. Specifications of light standards /fixtures and photom.etrics plan shall be submitted to Planning Division for approval. (4) Gateway element. A monument or similar design feature identifying an entry point or gateway into Santa Ana shall be installed. Page 4 of 6 75A -62 SECTION 11 — Signage standards in Specific Development No. 88 Lots in the SD No. 88 zoning district shall comply with the following standards: (a) Signage shall comply with the standards set forth in sections 41 -850 through 41 -1000 of the SAMC, with the exception of the standards identified below. (b) A comprehensive sign program shall be submitted for review and approval by the Planning Division. The sign program may include creative signage where the sign proposal is not consistent with existing Code provided it is designed to complement the form and finnction of the building and contributes to the aesthetics of the project. SECTION 12 — Landscape standards for Specific Development No. 88 In the SD No. 88 zoning district, all yards shall be landscaped. The site shall comply with the landscape plans included as an exhibit to the SD. In addition, the landscape plans shall comply with the following minimum requirements: (a) Front /side yard facing a street: (1) Two 24 -inch box canopy trees. (2) All trees shall be double - staked. (3) Six five- gallon size shrubs and 10 one - gallon size herbaceous perennials /shrubs as a foundation planting. (4) Turf or acceptable dry climate ground cover: i. Turf shall be drought tolerant variety and planted as sod or hydroseed. ii. Ground cover shall be well- rooted cuttings fronn fiats and planted at appropriate spacing for that particular plant material. (b) Irrigation systems: (1) A pop-up sprinkler type irrigation system shall be provided for all yards (2) The use of "xeriphytic" or dry climate type plant materials is encouraged. Irrigation systems may require special fittings to properly water dry climate plantings. Page 5 of 6 75A -63 (e) Screening: (1) All meters shall be appropriately screened from public view with trellis work and vines or a hedge type shrub or they shall be incorporated into the structure. (2) Any enclosed structure for utilities must not encroach into any required setback. (d) Maintenance: (1) All plant material shall be maintained per section 41 -609 of the Santa Ana Municipal Code. Page 6 of 6 75A -64 EXEMPT FROM RECORDER'S FEES Pm-suant to Government Code §§ 6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M -30 P.O. Box 1988 Santa Ana, California 92702 DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and Dated: 2015 I *I.II -]kml 1 75A -65 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND DYER 18, LLC, a California limited liability company This DEVELOPMENT AGREEMENT is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ( "City ") and Dyer 18, LLC, a California limited liability company ( "Owner "). The City and Owner are referred to jointly within this Development Agreement as the "Parties" and individually as a "Party." 1. RECITALS. The Development Agreement is entered into with reference to the following facts: 1.1 The Property. The real property which is the subject of this Development Agreement is located at 2001 East Dyer Road in Santa Ana, California ( "Property "), The Property is more particularly described in Exhibits A and B to this Development Agreement. The Property is an 18.84 acre parcel that is located at the northwesterly corner of East Dyer Road and Red Hill Avenue. The property contains a single building approximately 355,000 square feet in size that was constructed in 1972. The building is currently occupied by a variety of uses, including a data center that is occupying approximately 10,000 square feet, and various temporary uses utilizing a small portion of the existing warehouse space. Approximately 430 parking spaces are currently on -site. Regional access to the project site is generally provided via State Route 55 at the Dyer Road exit. Access to the project site is provided by Red Hill Avenue and Dyer Road, the latter of which becomes Barranca Parkway in the City of Irvine. The project site is located within the City of Santa Ana limits; however it is adjacent to the Cities of Irvine and Tustin. Areas across from Red Hill Avenue (to the east) are within the City of Tustin and are part of the former Tustin Marine Corps Air Station, now known as the Tustin Legacy. Areas across from Dyer Road (to the south) are in the City of Irvine within the Irvine Business Complex. 1.2 Purpose of this Development Agreement. (a) The purpose of this Development Agreement is to facilitate the redevelopment of the Property. (b) Owner's proposed project would redevelop the project site to provide three mixed used buildings that would provide 1,221 multi- family apartments, 12,675 square feet of retail commercial space and 5,415 square feet of restaurant space. The existing 366,000 square foot officelwarehouse building would be reduced in size by 75A' -66 removing the warehouse portion of the structure to provide a two - story 56,000 square foot office building and a 108 space surface parking lot. The exterior of the office building would be renovated to be consistent with the proposed architectural design of the new mixed -use buildings. The existing office portion of the structure provides 36,000 square feet of employee generating space and 20,000 square feet of data center use that contains only computer equipment. (c) The residential units would range in size from 512 square foot studios to 1,290 square foot one - bedroom and two - bedroom units. Three parking structures would also be developed, one structure for each mixed -use building. The proposed project includes both public and private (for residents) open space and recreational facilities on the project site. A 1.26 acre public central park, including various amenities, would be developed and would connect to open space areas along the northern and eastern boundaries. In addition, approximately 327,302 square feet of private open space, as well as private recreation amenities would be provided for residents. 1.3 Code Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing development certainty for both the City and Owner in the development process. City enters into this Development Agreement pursuant to the provisions of the Government Code and applicable City policies. The Parties acknowledge: (a) 'This Development Agreement is intended to assure adequate public facilities at the time of development. (b) This Development Agreement is intended to assure development in accordance with City's General Plan, and any applicable Specific Plans. (c) This Development Agreement will permit achievement of goals and objectives as reflected in the City's General Plan, and any and all applicable Specific Plans. (d) Owner is required by existing City regulations to provide mitigation for certain identified impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (e) This Development Agreement will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental 75A -67 benefits in addition to those available through the existing regulatory process. (f) Many of the extraordinary and significant benefits identified as consideration to City for entering into this Development Agreement are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1.4 Owner. Owner represents and warrants that it has a legal or equitable interest in the Property. 1.5 Interest of Owner. Owner represents that it has approved this Development Agreement and is authorized to enter into this Development Agreement. 1.6 Public Hearings. The Development Agreement was the subject of the following public hearings: (a) Planning Commission. On October 12, 2015, the Planning Commission, after giving notice pursuant to Government Code Sections 65090 and 65051, held a public hearing to consider the Owner's application for this Development Agreement and the environmental documentation evaluating the potential impacts of the proposed project. (b) City Council. On November 3, 2015, the City Council, after providing notice as required by law, held a public hearing to consider Owner's application for this Development Agreement and the proposed project. (c) Environmental Analysis. Before approving this Development Agreement, the Planning Commission and the City Council reviewed the Environmental Impact Report, and the City Council certified Final Environmental Impact Report No. 2015 -01. 1.7 City Council Findings, The City Council finds that this Development Agreement is consistent with the General Plan, as amended by General Plan Amendment No. 2015 -03, applicable specific plan(s), applicable zoning regulations, and all other applicable ordinances, plans, policies and regulations of the City. 1.8 City Ordinance. On November 3, 2015, the City Council adopted Ordinance No. NS- approving this Development Agreement. That ordinance becomes effective thirty (30) days after the date of adoption. 75A =68 2. DEFINITIONS. In this Development Agreement, unless the context otherwise requires: 21 "Applicable Rules" means all rules, regulations, ordinances and official plans and policies of the City in force as of the Effective Date, as included within the Santa Ana Municipal Code ( "SAMC "), Specific Development Plan No. 88 as adopted by Amendment Application No, 2014 -04, this Development Agreement and the Entitlements, as defined below. 2.2 "Effective Date" means November 3, 2015, the date upon which the ordinance approving the Development Agreement became effective. 2.3 "Entitlements" means this Development Agreement No. 2015 -03, Final Environmental Impact Report No. 2015 -01, General Plan Amendment No. 2015 -03, Vesting Tentative Tract Map No. 2015 -03, Amendment Application No. 2014 -04, and any changes to these to which Owner has consented in writing. 2.4 "Owner" means Dyer 18, LLC, a California limited liability company 2.5 "Project" is the development on the Property of a 1,221 -unit multiple family residential apartment development, 12,675 square feet of retail commercial space, and 5,415 square feet of restaurant space, as generally set forth in the Entitlements. 2.6 "Property" means the real property described in Exhibit A and referred to in Exhibit B. 2.7 "Public Art" is defined in Section 5.1.7, 2.8 "Public Art Fee" is defined in Section 5.1.7. 2.9 "Public Art Plan" is set forth in Exhibit C to this Development Agreement. 2.10 "Reserved Powers" means the rights and authority excepted from this Development Agreement's restrictions on the City's police powers and which are instead reserved to the City. The Reserved Powers include the power to enact and implement rules, regulations, ordinances and policies after the Effective Date that are not in conflict with the Applicable Rules or that may be in conflict with the Applicable Rules, but: (a) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health and /or safety; (b) are Uniform Codes; (c) are required to comply with mandates under state and federal laws, rules and regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; or (d) relate to increases in development impact fees occurring after the Effective Date. 75A -69 2.11 "Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations which are based on recommendations of a multi- state professional organization and become applicable throughout the City, such as, but not limited to, the California Building Code, the California Electrical Code, the California Mechanical Code, or the California Fire Code (including those amendments to the promulgated Uniform Codes which reflect local modification to implement the published recommendations of the multi -state organization and which are applicable City - wide). 2.12 "Utility Release" means the formal approval of the City Building Department, following its inspection, that residential unit(s) may be released for initial connection to the electrical power system, water service system, gas service system, and sanitary sewer system. Utility Release(s) do not include temporary utility service provided to any structure during construction. 3. EXHIBITS. The following documents referred to in this Development Agreement are attached to this Development Agreement and are identified as follows: Exhibit Designation Description Referred to in Section A Property Legal Description 1.1, 2,6 B Property Graphical Description 1.1 C Public Art Plan 2.9, 5.1.7 C��]�tT1�:7e \A�:Z�3�I�ICi7 tF'� 4.1 Term of Development Agreement ( "Term "). This Development Agreement shall have a five -year term starting on the Effective Date of November 3, 2015, and ending on November 2, 2020. Upon request from the Owner, the Executive Director of the Planning and Building Agency may extend the Term for up to five (5) additional years upon his or her sole discretion. The Executive Director shall also have the authority to approve any necessary minor modifications to the project requested at the time of the Term extension. Any dispute pertaining to any extension shall be brought before the Planning Commission for review and City Council for final determination. 42 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this Development Agreement; provided, however, the rights of Owner under this Development Agreement may not be transferred or assigned 75A =70 unless the written consent of the City Council is first obtained, and any transfer or assignment of the rights under this Development Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this Development Agreement, if the City grants written consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer of the rights under this Development Agreement shall be wholly void and of no force and effect unless such written consent thereto be obtained from the City Council. A transfer or assignment of the rights under this Development Agreement without the consent of the City Council shall not relieve Owner of any accrued duty, obligation or liability to City, No consent shall be required for sale of units to condominium unit buyers.. During the term of this Development Agreement, any approved assignee or transferee of the rights under this Development Agreement shall observe and perform all of the duties and obligations of Owner contained In this Development Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this Development Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Development Agreement. Upon assignment or transfer of the rights of Owner under this Development Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. Should the Project be developed as or later converted to condominiums, individual condominium unit buyers shall not have any liability or obligation pursuant to this Development Agreement. 4.3 Amendment or Cancellation of Development Agreement. This Development Agreement may be amended from time to time or cancelled by the mutual consent of the Parties, but only in the manner required by Government Code Section 65868.. 4.4 Enforcement. Notwithstanding Government Code Section 65865.4, this Development Agreement is enforceable by either Party in any manner provided by law. The remedies provided in Section 7.4 shall not include, and City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this Development Agreement. 4.5 indemnification by Owner. Owner agrees to and shall indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from liability for damages, 75A -71 attorney's fees, restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from construction activities with respect to the Project by the Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf. Owner further agrees to indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from any Litigation, as hereinafter defined. For purposes of this paragraph, "Litigation" shall mean any lawsuit, action or cross - action, challenging the validity of this transaction, the Project as defined in Section 2.5, or any portion thereof or the rights of either party hereunder and /or the rights of either party to engage in the acts and transactions contemplated by this Development Agreement. Notwithstanding any other provision of this Development Agreement, this indemnity and duty to defend shall be limited as follows: (a) In the event of any Litigation the parties agree to affirmatively cooperate in defending said action. (b) Owner shall have approval of any settlement if, (1) it will affect Owner's project, or (ii) Owner will be required to pay (or reimburse) any amounts (regardless of type) in connection with the settlement (including attorney's fees and costs). (i) If City determines to settle over Owner's objections, then Owner may upon thirty (30) days written notice terminate defense of the action. (ii) If City rejects a settlement offer that Owner deems reasonable, then Owner may upon thirty (30) days written notice terminate defense of the action. (c) Owner shall be allowed to terminate its defense if it determines to abandon defense of its project application; provided, however, that in such circumstance Owner shall be solely liable for award, if any, of costs or attorney's fees to plaintiff /petitioner incurred prior to the effective date of termination. 4.6 Binding Effect of Development Agreement. To the extent not otherwise provided in Section 4.2 of this Development Agreement, the burdens of this Development Agreement bind, and the benefits of the Development Agreement Inure, to the parties' successors in interest. 4.7 Relationship of the Parties. The contractual relationship between City and Owner arising out of this Development Agreement is one of independent contractor and not agency. This Development Agreement does not create any third party beneficiary rights. 75A =72 4.8 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this Development Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, California 92702 And City Attorney, City of Santa Ana 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, California 92702 Owner: Dyer 18, LLC 1945 Port Chelsea Place Newport Beach, CA 92660 Attention: General Counsel A Party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duty registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty - four (24) hours after the time set forth on the transmission report issued by the transmitting telefacsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 5.1 City Obligations. In consideration for Owner entering into this Development Agreement and performing its obligations hereunder, and in order to effectuate the purposes and intentions set forth in this Development Agreement and the Development Agreement Act, the City hereby agrees during the Term as follows: 5.1,1 Vested Right to Develop. Owner is hereby granted the vested right to develop the Project subject to the terms and 75A -73 conditions of the Applicable Rules and the Reserved Powers. 5.1.2 Non - Application of Changes in Applicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in the General Plan, zoning ordinance, subdivision ordinance, or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of ordinance, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever, however denominated, and adopted by the City Council, Planning Commission or any City Agency, or by the electorate, as the case may be, which would, absent this Development Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules, shall not be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or are otherwise expressly allowed by this Development Agreement. In the event that state or federal laws or regulations enacted after this Development Agreement has been entered into, prevent or preclude compliance with one or more provisions of this Development Agreement, such provisions of this Development Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 5.1.3 Agreed Changes and Other Reserved Powers. This Development Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies in conflict with the Applicable Rules where such additional rules, regulations, ordinances and officially adopted plans and policies: (a) are mutually agreed to in writing by Owner and the City, or (b) result from the Reserved Powers. 5.1.4 Subsequent Development Approvals. The City shall require Owner to obtain only those Subsequent Development Approvals that are required by the Applicable Rules or the Reserved Powers. City agrees that it shall condition any Subsequent Development Approvals based only on the Applicable Rules and /or Reserved Powers. 5.1.5 Moratoria. In the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate, amount, 75A =74 timing, sequencing, or phasing of the development or construction of the Project on all or any part of the Property, City agrees that, unless required by applicable state or federal law, such ordinance, resolution or other measure shall not apply to the Project, Property or this Development Agreement, unless such changes are adopted pursuant to the City's exercise of its Reserved Powers or other applicable provision of this Development Agreement. 5.1.6 Timing of Development. The parties acknowledge that Owner cannot at this time predict when or if the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465 that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that, except as provided in and subject to Section 5.8, Owner shall have the right to develop the Property at such rate and at such time as Owner deems appropriate within the exercise of its subjective business judgment, 5.1.7 Development, Construction, and Completion of Public Art. Owner shall include within the Project a single or grouped permanent work of public art consistent with the Public Art Plan (collectively, "Public Art "), attached herewith and incorporated herein as Exhibit C, at a cost of not less than one half of 1% of the total construction costs ( Thousand Dollars ($ ,000) (the "Public Art Fee "). 5.2 Exclusion from Existing Rules, Regulations and Policies. (a) Pursuant to Government Code Section 65866 and Pardee Construction Co. v. Citv of Camarillo (1984) 37 CaL3d 465, City retains the right to enact police power regulations on matters not covered by Section 5.1 of this Development Agreement, including without limitation: (i) Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in 75A► -75 accordance with Section 5.1 of this Development Agreement. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non - conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non - conflicting laws and regulations include the following: • Taxes, assessments, fees and charges, except as otherwise specifically provided in this Development Agreement; • Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; • Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city -wide basis; and • Procedural rules of general City -wide application. 5.3 Construction Standards and Specifications, The construction standards (e.g., the Uniform Codes) and specifications for all Project construction shall be subject to applicable construction standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 FAA and ALUC Approval. Owner shall obtain and maintain, during the term of this Development Agreement, any and all necessary approvals from the Federal Aviation Administration (FAA) and the Airport Land Use Commission (ALUC) for the Project. Should such approvals lapse and not be reinstated or reapproved prior to the issuance of the first building permit, the City shall have the right to terminate this Development Agreement. 5.5 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including, but not limited to, fees and charges for applications, processing, inspections, plan review, plan processing, and /or environmental review, which are existing or may be revised or adopted during the term of this Development Agreement, shall apply to the development of the Property. 5.6 Amendments or Additions to Citywide Fee Programs. This Development Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as 'fees ") adopted by the City after the effective date of this Development Agreement, which shall be applicable to 7 5A "76 the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Project impacts which were analyzed in the environmental impact report prepared for the Project, or (b) duplicate any project design features conditions of approval, agreements, or mitigation measures contained in this Development Agreement, 5.7 Open Space. All common area open space on Lots A and B of Vesting Tentative Tract Map No. 17962 must be built in the first phase. 5.8 Phasing of Project. The parties agree and acknowledge that the Project may be built in three (3) phases, but that, except as otherwise expressly stated herein, all conditions and mitigation measures shall be implemented as part of the initial phase; provided, however that Owner may propose to delay to the second phase on -site conditions (e.g., sidewalks) that could be damaged by future construction. Additionally, Owner shall build all private streets and the central park in the first phase. Prior to issuance of the first building permit for the Project, Owner shall submit a proposed Phasing Plan to the City, for review and approval by the Executive Director of the Planning and Building Agency. The proposed Phasing Plan shall contain those items Owner deems necessary, but shall include the timing for first and second phase construction and interim site improvements (i.e., landscaping, internal circulation) between the phases. The approved Phasing Plan must be implemented within six (6) months after completion of the first phase (i.e., issuance of first Utility Release), Generally, the phases shall proceed as follows: Phase I The first phase of the project would consist of 335 apartment homes within two five -story apartment buildings wrapping a parking structure. This phase would be built on the south side of the parcel facing Dyer Road. Five different unit types and nine different floor plans are proposed for the project, with the units ranging from studio to three bedroom units. This phase also includes approximately 9,700 square feet of commercial and restaurant space. The units would be wrapped around a 6'/2 -level garage that will contain 646 parking spaces, with another 18 spaces on the private drive. Parking is provided at a rate of approximately 1.9 parking stalls per unit, which includes guest and commercial parking. Also to be built within this phase is a two - story, 56,000 square foot office building that will house the current data center tenant as well as other 75A -77 future office uses. A total of 102 parking spaces have been allocated to this component of the project. Phase 11 The second phase of the project would consist of 403 apartment units situated within two five -story buildings wrapping a parking garage. This phase would be built on the west side of the parcel with the southern elevation facing Dyer Road. Six different unit types and nine different floor plans are proposed for the project, with units ranging from studio to three bedroom units. In addition, approximately 4,100 square feet of commercial and restaurant space would be incorporated into this phase of the project. The units would be wrapped around a 6 -level garage containing 722 parking spaces, with another '15 spaces to be located on the private drive. Parking for this phase has been provided at a rate of approximately 1.83 parking stalls per unit, which includes guest parking. Phase III The third and final phase of the project would consist of 483 apartment homes within three five -story apartment buildings wrapping a parking garage. This phase would be built at the northern area of the parcel, with the eastern elevation facing Redhill Avenue. Six different unit types and nine different floor plans are proposed for the project. The project units would consist of studio, live /work, and one to three bedroom units. The units would be wrapped around a 6 "/a -level garage that would contain 809 parking spaces, with another 21 spaces to be located on the private drive. Parking for this phase has been provided at a rate of approximately 1.72 parking stalls per unit, which includes guest parking. 5.9 inclusionary Housing. Owner's project qualifies as a "pipeline project" under the amended Housing Opportunity Ordinance (Article XVIII.I of Chapter 41 of the Santa Ana Municipal Code) and shall pay the City an in- lieu fee of $9.35 per square foot of habitable space in order to fulfill the inclusionary housing requirement. Owner may express a preference for how these funds may be used, but the final decision regarding use of the inclusionary housing funds lies solely with the Executive Director of the Community Development Agency_ 510 Covenants, Conditions, and Restrictions. Prior to the issuance of the first building permit for the Project, Owner shall provide to the City the proposed Covenants, Conditions, and Restrictions ( "CC &R's ") to be recorded against the Property. Those CC &R's must be approved by the Executive Director of the Planning and Building Agency. The City's review and approval of the CC &R's shall be limited to determining inclusion of the following restrictions within the CC &R's: 75A!78 (a) Allocation of responsibility for repair of perimeter walls and common areas, including landscaping, will be specified in the CC &R's in the event of damage. (b) Notice of the urban character of the City and this area, including but not limited to: (i) the permitted uses of the property and buildings in the immediate area of the development; and (ii) the flight path for the airport. (c) The release of the City from all claims which may arise from or relate to the urban character of the City and this area. (d) The need for the approval of the City to any proposed modifications to the provisions of the CC &R's identified in this Section 5.10. 5.11 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of those approvals, and in no event shall such conditions be affected by the termination, cancellation, rescission, revocation, or default or expiration of this Development Agreement (although such conditions must comply with the Applicable Rules), 5.12 Compliance with Governmental Requirements. Owner shall carry out the design, construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisions of the City and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code§ 4450 et seq., and the Unruh Civil Rights Act, Civil Code§ 51 et seq. (collectively, "Governmental Requirements "). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this Development Agreement, review the extent 75A -79 7 of good faith substantial compliance by Owner with the terms of this Development Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of this Development Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with this Development Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter ") stating that based upon information known or made known to the City Council, the City Planning Commission and /or the Executive Director of the Planning and Building Agency, this Development Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange_ 6.3 Failure to Conduct Annual Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Development Agreement shall not constitute or be asserted by any Party as a breach of this Development Agreement by Owner or City. 7.1 Events of Default. Owner is in default under this Development Agreement upon the happening of one or more of the following events or conditions: (a) If a warranty, representation, or statement made or furnished by Owner to the City is false or proves to have been false in any material respect when it was made; (b) A finding and determination made by the City Council following a periodic review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Owner has not complied in good faith with one or more of the terms or conditions of this Development Agreement; (c) Failure to comply with Governmental Requirements; (d) Any other event, condition, act, or omission which materially interferes with the intent and objectives of this Development Agreement. 7.2 Procedure upon Default. The following principles and procedures shall be applied in the determination of any Default: (a) Upon the occurrence of default, City shall give Owner (the "defaulting party ") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the manner in 75A=80 which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day cure period without cure, City may terminate or amend this Development Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be cured within said thirty (30) day cure period, City may terminate or amend this Development Agreement In accordance with the procedure adopted by the City should at any time Owner fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. (b) City does not waive any claim of defect in performance by Owner, if on periodic review the City does not propose to modify or terminate this Development Agreement. (c) Non- performance shall not be excused because of failure of a third person. (d) An express repudiation, refusal, or renunciation of the contract, if the same is In writing and signed by the Owner, shall be sufficient to terminate this Development Agreement and a hearing on the matter shall not be required. (e) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Owner. (f) All other remedies at law or in equity which are not inconsistent with the provisions of this Development Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Owner be entitled to any damages against City upon termination of this Development Agreement. 7.4 Institution of Legal Action. in addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any default or breach, to specifically enforce any covenants or agreements set forth in this Development Agreement, or to enjoin any threatened or attempted violation of this Development Agreement; or to obtain any remedies consistent with the purpose of this Development Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division, 8. MORTGAGEE PROTECTIONS 75A -81 8.1 Right to Owner /Notice /Multiple Mortgagees. Owner shall have the absolute right to encumber Owner's right, title and interest in, to and under this Development Agreement and the Property pursuant to one or more Mortgages. Because certain portions of the Project may be developed by one or more assignees, the Parties acknowledge and agree that different Mortgages may encumber the Property and that there may be a separate Mortgage in effect with respect to separate parcels within the Property. It is the intention of the Parties that the rights and protections granted in this Section 8 to each Mortgagee shall only apply to the parcels upon which such Mortgagee's Mortgage is a lien (each a "Mortgage Parcel "), and to the rights, privileges and obligations under this Development Agreement relating to such Mortgage Parcel, 8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Owner as provided herein, whenever the City delivers any Notice or demand to Owner with respect to any Breach by Owner under this Development Agreement, and if Owner fails to cure the Breach within the time set forth herein, the City shall deliver to each Mortgagee a copy of such notice or demand accompanied by a writing to the effect that Owner has failed to cure a Breach ( "Mortgagee Notice "); provided that Owner or Mortgagee has provided City with addresses for such purpose. Each such Mortgagee shall (insofar as the rights granted by the City are concerned) have the right, at Its option, within thirty (30) days after the receipt of the Mortgagee Notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such Breach and to add the cost thereof to the mortgage debt and the lien of its mortgage; provided, however if the Mortgagee is legally prevented from curing such Breach because of a bankruptcy by the Owner then the thirty (30) day period shall be tolled until such bankruptcy is confirmed or rejected. Nothing contained in this Development Agreement shall be deemed to permit or authorize such Mortgagee to take advantage of Owner's rights hereunder, or any portion thereof, without first having expressly assumed Owner's obligations to the City by written agreement reasonably satisfactory to the City. It is understood that a Mortgagee shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy Owner default which requires title and /or possession of the Property (or portion thereof) if and to the extent any such Mortgagee has within such thirty (30) day period commenced proceedings to obtain title and /or possession and thereafter the Mortgagee diligently pursues such proceedings to completion and cures or remedies the Breach, provided that, in such event, all noncurable Defaults shall be waived. 8.3 Mortgagee Not Obligated tinder this Development Agreement. Unless a Mortgagee expressly assumes Owner's Obligations to the City in accordance with Section 8.2, no Mortgagee shall in any way be obligated by the provisions of this Development Agreement, nor shall any covenant 75 A "82 or any other provision in this Development Agreement be construed to obligate such Mortgagee, Nothing in this Development Agreement shall be deemed to construe, permit or authorize any such Mortgagee to devote the Mortgage Parcel to any uses or to construct any improvements on the Mortgagee Parcel, other than those uses or improvements provided for or authorized by this Development Agreement. 8.4 No Liability. No Mortgagee shall have any liability beyond its interest in the Mortgage Parcel acquired through enforcement of its Mortgage for the performance or payment of any covenant, liability, warranty or obligation under this Development Agreement. City agrees that it shall look solely to the interests of such Mortgagee in such Mortgage Parcel for payment or discharge of any such covenant, liability, warranty or obligation. 8.5 No Amendment or Termination. This Development Agreement shall not, without the prior written consent of all Mortgagees holding Mortgages on any portion of the Property, be amended to (a) terminate this Development Agreement prior to the expiration of the Term (except as expressly provided above) or (b) change any provision of this Development Agreement which, by its terms, is specifically for the benefit of Mortgagees. No amendment to this Development Agreement affecting the Property or any part thereof, made without the consent of any Mortgagee holding a Mortgage on such Property, or any part thereof, shall be binding upon such Mortgagee or its successors in interest should it become a party hereto. 8.6 Condemnation or insurance Proceeds. Nothing in this Development Agreement shall impair the rights of any Mortgagee, pursuant to its Mortgage, to receive insurance and /or condemnation proceeds which are otherwise payable to Owner granting such Mortgage. 8,7 Title by Foreclosure. Except as otherwise set forth herein, all of the provisions contained in this Development Agreement applicable to any of the Mortgage Parcel shall be binding on and for the benefit of any person who acquires title to the property, or any part thereof, by foreclosure under a Mortgage or transfer by deed in lieu. 8.8 Delegation to Mortgagee, Owner may delegate and /or assign irrevocably to any Mortgagee the non - exclusive authority to exercise any or all of Owner's obligations and /or rights hereunder with respect to the Mortgage Parcel, but no such delegation shall be binding upon the City unless and until either Owner or such Mortgagee shall give to the City a true and correct copy of a written instrument effecting such delegation. Such delegation of authority may be effected by the terms of the Mortgage itself, in which case service upon the other Party of an executed counterpart or conformed copy of said Mortgage, together with written notice specifying the provisions therein which delegates such authority to 75A -83 said Mortgagee, shall be sufficient to give such other Party notice of such delegation. No such delegation or assignment shall relieve the Owner of that Mortgage Parcel of any of its obligations hereunder with respect to such Mortgage Parcel. 8,9 No Obligation to Cure. Nothing herein contained shall require any Mortgagee to cure any default of Owner referred to above. 8.10 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee requesting same, an agreement prepared at the sole cost and expense of Owner, in form satisfactory to such Mortgagee and the City, between the City and the Mortgagoes, agreeing to all of the provisions hereof, provided Owner pays for all legal and other consulting costs incurred by City in reviewing same. 8,11 Estoppel Certificate. Within thirty (30) days after written request therefore, the City shall execute and deliver to any proposed Mortgagee in connection with its new Mortgage and to such Mortgagee thereafter from time to time an estoppel certificate in form and substance satisfactory to Owner and such Mortgagee ( "Estoppel Certificate "). The City hereby agrees to reasonably cooperate in including in any such Estoppel Certificate from time to time any provision which may reasonably be requested by any proposed Mortgagee for the purpose of implementing the Mortgagee protection provisions contained in this Section 8 and allowing such Mortgagee reasonable means to protect or preserve the lien and security interest of its Mortgage hereunder, clarifying the non - applicability of the provisions of this Development Agreement to such Mortgagee as it relates to parcels other than the Mortgage Parcel, and /or such other terms and provisions as are Customarily required by Mortgagees (taking into account the customary requirements of their participants, syndication partners or ratings agencies) in connection with any such financing; provided, however, that no such Estoppel Certificate shall in any way materially adversely affect any rights of the City or increase any obligations of City under this Development Agreement. 8.12 Conflicts. If there is any conflict between this Section 8 and any other provision contained in this Development Agreement, this Section 8 shall control. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall' is mandatory; "may" is permissive. If there is more than one signer of this Development Agreement, their obligations are joint and several. 75A 84 9.2 Entire Agreement, Waivers and Amendments. This Development Agreement constitutes the entire understanding and agreement of the Parties with respect to the matters set forth in this Development Agreement. This Development Agreement supersedes all negotiation or previous agreements between the Parties respecting this Development Agreement. All waivers of any provision of this Development Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this Development Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Upon the completion of performance of this Development Agreement or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, California. 9.3 Project as a Private Undertaking. It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 at seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Development Agreement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this Development Agreement are part of this Development Agreement, 9.5 Captions. The captions of this Development Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Development Agreement. 9.6 Consent. Where the consent or approval of a Party is required by or necessary under this Development Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The Parties shall cooperate with and deal with each other in good faith. They will assist each other to the extent needed In the performance of the provisions of this Development Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Development Agreement of which time is an element. 9.9 Force Majeure. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, 75A -85 wars, riots or similar hostilities, government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the Party's control. if any such events shall occur, the Term of this Agreement and the time for performance by either Party of any of its obligations hereunder may be extended by the written agreement of the Parties for the period of time that such events prevented such performance, provided that the Term of this Agreement shall not be extended under any circumstances for more than five (5) years. 9.10 Conflicts of Law. in the event that state or federal laws or regulations enacted after this Development Agreement has been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Development Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Development Agreement. The Parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Development Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state law or regulation upon this Development Agreement, the matter shall be scheduled for hearing before the City Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.11 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Development Agreement. 9.12 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Development Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 75A''86 9.13 Jurisdiction and Venue. Any action at law or in equity arising under this Development Agreement or brought by a Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, and the Parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 9.14 Counterparts. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. 9.15 Recording. The City Clerk shall cause a copy of this Development Agreement to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the effective date of this Development Agreement. 75A -87 IN WITNESS WHEREOF, this Development Agreement has been executed by the City of Santa Ana and by Owner. Dated this day of 2015. ATTEST: THE CITY OF SANTA ANA Maria Huizar, Clerk of the Council ♦ w r i _ i A . w Lisa Storck, Assistant City Attorney David Cavazos, City Manager DYER 18, LLC a California limited liability company Title: 75A" 88 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On , 2015 before me, _ a Notary Public in for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On , 2015 before me, a Notary Public in for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and official seal. Signature of Notary Public 75A -89 W: 4:1 Ic7�I�:1 Property Legal Description Grange County Assessor's Parcel Number 75A -90 �m Property Site Plan 75A -91 EXHIBIT C The Public Art shall be designed, constructed, and installed by Owner. A Final Design Plan for the Public Art shall be submitted to the Executive Director of the Planning and Building Agency within thirty (30) days prior to the issuance of a Final Certificate of Occupancy for the first unit of the Project. The Executive Director of the Planning and Building Agency (or his designee) shall have sole discretion to approve or deny said Final Design Plan for the Public Art. The Final Design Plan shall (i) identify one (1) or more specific items of Public Art for one (1) or more specific locations and /or application, and (ii) specify the timing of the installation of the Public Art. The installation shall occur no later than 180 days after the first utility release for the Project. Owner shall expend not less than Thousand Dollars ($. ) in total in connection with the Public Art. 3. The Public Art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, and /or capture or reinforce the unique character of the new place. 4. The Public Art should be constructed using durable materials and finishes, including, but not limited to, stone or metal. 5. The Public Art should be comprised of a single or grouped permanent work(s) at a prime location visible to the public and sited to complement features such as plaza or architectural components so that the Public Art is an integral part of the development site. 6. No Public Art shall include advertising of any type, including, but not limited to, products, services, or businesses. All Public Art shall be properly maintained at all times, be free of any graffiti, and shall not incorporate any flashing or distracting form of illumination. 8. The Owner may assign ownership, maintenance and /or repair responsibilities of the Public Art to one or more Owners` Association(s). 9. All Public Art shall remain on the Property and may not be removed without the prior approval of the Executive Director of the Planning and Building Agency. 10. Expenses not included in the Public Art Fee: a. Expenses to locate the artist(s) (e.g., alrfare for artist Interviews, etc.) 75A =92 b. Architect and Landscape Architect fees incurred in connection with the Public Work(s) of Art. C. Landscaping around Public Work(s) of Art that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by the artist, and ornamental enhancements. d. Utility fees associated with activating electronic or water generated artwork. e. Lighting elements not integral to the illumination of the Public Art. Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. g. Dedication ceremonies, including sculpture unveilings or grand openings. 75A -93 J I I / EXHIBIT 16 ry 04 iii iL UJ I I / EXHIBIT 16 ry CHAPTER 4 Mitigation Monitoring and Reporting Program Pursuant to Section 21081.6 of the Public Resources Code and the CEQA Guidelines Section 15097, a lead agency is required to adopt a monitoring and reporting program for assessing and ensuring compliance with the required mitigation measures applied to a proposed project for which an EIR has been prepared. As stated in the Public Resources Code (Section 21.081.6(a)): ".., the public agency shall adopt a reporting or rnonitoringprograni for the changes node to the protect or conditions oJ'prg1ect approval, adopted in order to mitigare or avoid significant effects on the enidronnaetit. " Section 21081.6 provides general guidelines for implementing mitigation monitoring programs and indicates that specific reporting and /or monitoring requirements, to be enforced during project implementation, shall be defined prior to final certification of the EIR. The lead agency may delegate reporting or monitoring responsibilities to another public agency or a private entity, which accept such delegation. The lead agency, however, remains responsible for ensuring that implementation or the mitigation measures occur in accordance with the program. The mitigation monitoring and reporting program table below lists mitigation measures that arc required to reduce the significant effects of the proposed project. To ensure that the mitigation measures are properly implementer(, the mitigation monitoring and reporting program provide the following information: • Mitigation Measure(s): The action(s) that will be taken to reduce the impact to a less - than-significant level. • Implementation, Monitoring, and Reporting Action: The appropriate steps to implement and document compliance with the mitigation measures. • Responsibility: The agency or private entity responsible for ensuring implementation of the mitigation measure. However; until the mitigation measures arc completed, the City of Santa Aria, as the CEQA Lead Agency, remains responsible for ensuring that implementation of the mitigation measures occur in accordance with the mitigation monitoring and reportingprogram (CEQA Guidelines, Section 15097(a)). • Monitoring Phase: The general timing for conducting each monitoring task. _ EXHIBIT 17 The Heritage Mixed Use Pmjeel 4 -1 T ESA 1140780 Final EnWm.wtal impact Repert Soptember 2015 75A -95 y � U � C B E a v V m o a c Na U N � N U a C cC R x 9 4 Q C /) m n� u �g4 +R+ 8 e •� F e N E � rn e °C � a e[Rp O ga b a E 75A -96 o c pcR. m��� i7 �•_ °NU °1 E m° 0 m E «° •5 m a HC U C ° a ° [Ctl V C O= S'O 1n 22075 ,g N O a C p tl C O 1�N� a y yry N Y, ,O �. O no 2 n Cao WE 2 a 0. 0 Sc N'b O —hr'SS N E N ro t O ?NN em � �•C C° >' N N G C U N C c N i R w E G C v_� C C [b @ O 92 O a C'M O° 'C t.3g «�ma b.-ffi _c s. RmC Cif' C p� C? "E o. CI g °6 N N OI EL N E° Ugrn C7 �pIO 0, Qa V N rov > R ro""`a,croE�-s 0 O U = 0 7 0 CI V a a f LVR L y R 6 N O N.2g C w mca.�ai +n °i el o2i tEdaE "cW M iq U N> R Eta; CY C Ia m d pl3OO N N T_Rtli N��N � °cxoNn� c mt0a �N c a lei aa'mn°iR am N C C p C E C aY.0 aE N W N [V d u � E m c 3 ; i w U a `• �R U U1 N COIN [� iy 2 R N mw y J C O = N C 4 N m(16 3 C O °�mUro IIEUR 'a —EUR NV 0 2a��JOpm 4rym. cw.wac N d R N m y `aw 9mvg mmvg �. m ffiE— OE.N �Utv m f�Qm©� G U�Cy Um v C a E N1 N C 6 i5 6 2 ZS (p O U LY R 'LJ O y c MCC '>° NC O O UV moo 6VV d b O KUV c o C a c o d4:: EQ O CI email C C nY D O CJ O ❑ O 0 ao o�> 75A -96 o c pcR. m��� i7 �•_ °NU °1 E m° 0 m E «° •5 m a HC U C ° a ° [Ctl V C O= S'O 1n 22075 ,g N O a C p tl C O 1�N� a y yry N Y, ,O �. O no 2 n Cao WE 2 a 0. 0 Sc N'b O —hr'SS N E N ro t O ?NN em � �•C C° >' N N G C U N C c N i R w E G C v_� C C [b @ O 92 O a C'M O° 'C t.3g «�ma b.-ffi _c s. RmC Cif' C p� C? "E o. 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Z 1- ° N SY i� C na N J Q'O w C n 1- 'a >am o CO n °roc- pn(LI�N =w a'yL as d @ �t'SOCmNC tea° cmtlL N(nDNOINN N�DOD btCN ).g .= v o c cw pia w i N ami ¢v c acv) �.2 E uEi OW�Ea s �'�a� 2 cm 03; °rodcad ct°c_° 0 -- o0EEm'°°' o`o EE'iCV✓m.20c ILl 3'.Oi. ro .0 OYpoao> NmN NNaNNUN W(nD 6•ynd.Y ;acu mc.�wa....n v.00 mda olm_aoo._ m'w- LENCE1a m, a L 5 - 'r'wn ".�LONN. -o.. :K Q'o �¢�I -OOw �i 3ro ENE �eFmEa @o �O yr nn nVaVo 75A -108 N m y u a L rn � D C 3 m w N C= � Z I° o e � N w a e! V 0 ea v E c r.a a LL GRANGE COUNTY October 16, 2015 AIRPORT LAND USE COMMISSION 3160 Airway Avenue • Costa Mesa, California 92626 - 949.252.5170 fax: 949.252.6012 Vince Fregoso, Acting Planning Manager City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Subject: Heritage Mixed Use Development at 2001 )Gast Dyer -Road Dear Mr, Fregoso; During the meeting held on October 15, 2015 the Airport Land Use Commission (ALUC) for Orange County considered the subject project. The matter was duly discussed and with a vote of 5 to 1 the Commission found the proposed Heritage Mixed Use Development located at 2001 East Dyer Road to be Inconsistent with the QOmmission's,Airporl Enuirons Land Use Plan (AEL UP) far John Wayne Airport (JWA) per AEL UP Sections 1.2 and 2.1.4, and PUC Section 21674 which state that the commission is charged by.PUC Section 21674(a) "to assist local agencies in ensuring compatible land uses in the vicinity of ...existing airports to the extent that the land in the vicinity of those airports is not already devoted to incompatible uses," and PLC Section 21674(b) `to coordinate planning at °the state, regional and local levels so as to provide for the orderly development of air transportation, while at the same time protecting the public health, safety and welfare.' Please contact Lea Choum, at (949) 252 -5123 or via email at lehoum ocair.com if you require additional information or have questions regarding this proceeding. Sincerely, Kati A. Rigoni Executive Officer EXHIBIT B 75A -109 75A -110 AIRPORT LAND USE COMMISSION MANGE COUNTY FOR ORANGE COUNTY 3160 Airway Avenue, Costa Mesa, California 92626.949.252.5170 Fax: 949,252.6012 January 15, 2016 Ms. Sonia Carvalho, City Attorney City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 SUBJECT: City of Santa Ana — Proposed Overrule Action on'the,proposed Heritage Project Dear Ms. Carvalho: The Airport Land Use Commission for Orange County (ALUC) is in receipt of your letter dated December 16, 2015 and City Council Resolution No. 2015 -XXX containing proposed oven-ule findings for the above - referenced project located at 2001 East Dyer Road. Regarding the subject Proposed City Overrule Action,` the.ALUC,provides the following comments. Please be advised that California Public Utilities Code Section 21678 states, "With;respect to a publicly owned airport that a public agency does not operate, if the public agency pursuant to Section 21676, 21676.5 or 21677 overrules a commission's action or recommendation, the operator of the airport shall be immune from liability for damages to property or personal injury caused by or resulting directly or indirectly from the public agency's decision to overrule the commission's action or recommendation." On October 15, 2015, the ALUC found the proposed Heritage Project to be inconsistent with the Airport Environs Lam? Use Plan (AELUP) for Jahn Wayne_ Airport (JWA) with a vote of 5 to 1 in accordance with AELUP Sections 1.2 and 2.1.4, and PUC Section 21674 which state that the commission is charged by PUC Section 21674(a) "to assist local agencies in ensuring compatible land uses in the vicinity of ...existing airports to the extent that the land in the vicinity of those airports is not already devoted to incompatible uses," and PUC Section 21674(b) "to coordinate planning at the state, regional and local levels so as to provide for the orderly development of air transportation, while at the same time protecting the public health, safety and welfare," The findings Section (A) of the City's resolution on page 3 states that the City Council of the City of Santa Ana hereby finds and detennines that the proposed project does not create new noise and safety issues and, thus, meets the purposes of Public Utilities Code Section 21670 (a), It is important to note that by changing the site's General Plan designation from Professional and Administrative Office (PAO) to District Center (DC), new residential uses would now be EXHIBIT C 75A -111 ALUC Heritage Overrule Response January 15, 2016 Page 2 allowed in an area that has historically been only office and industrial uses. The proposed Heritage project would now be placing residential uses directly under the aircraft approach corridor for JWA, subjecting residents to overflight of both commercial and general aviation aircraft (See Attachment 1). The Findings Section (D) of the City's resolution on page 4 discusses that the proposed Heritage Project is not located within the John Wayne Airport ( "JWA ") 60 or 65 dBA Cumulative (Please note this should be Community not Cumulative) Noise Equivalent Level ( "CNEL ") noise contours indicating areas of significant noise impact as set forth in the JWA Master Plan. The City's resolution Findings Section (E) goes on to state that the proposed Heritage Project is not within the safety zone areas for JWA within which limitations on development and occupancy apply to protect surrounding occupants from adverse airport impacts. Although the proposed project is not within the 60 and 65 CNEL noise contours and is located outside the safety zones for JWA, the proposed Heritage Project is located under the aircraft approach centerline for JWA, and residential uses in this area would not coexist well with constant overflight of aircraft. On October 8, 2015 JWA provided the City of Santa Ana Planning Commission with flight track exhibits showing flight tracks over the proposed project site (see Attachments 2 and 3). ALUC staff also presented the same flight track information at the October 15, 2015 ALUC meeting. Attachment 2 shows a day's worth of normal aircraft arrival operations and has a corresponding table listing each flight, the time of day and elevation above the proposed project site. The table shows that the majority of flights over the property are in range of 500 to 700 feet above ground level and arrive in very close intervals. (This is also graphically depicted in Attachment 4 which is an exhibit from County of Orange /JWA Final EIR 617.) As an example, the table shows aircraft arrivals from 9:00 a.m. to 10:00 a.m. when aircraft flew over the property, on average, every 3.7 minutes with the longest interval being 8 minutes between flights and the shortest being I minute. In the 8:00 p.m. to 10:30 p.m. timeframe on the same day, planes flew over the property, on average, every 5.2 minutes, with the longest interval between flights being 22 minutes and the shortest interval being I minute, Attachment 3 has also been included for your information and shows a day's worth of reverse flow departure flight tracks. The reverse departure flow occurs approximately 5% of the time, primarily due to weather factors. During reverse flow circumstances, departing aircraft may be higher in altitude, but louder over the project area. Based upon these aircraft arrival, departure and altitude statistics, future residents of the proposed Heritage Project arill experience significant aircraft overflight and single event noise. It has been the ALUC's experience that residential uses located under aircraft approach and departure corridors generate a significant number of noise complaints from the affected residents. The City should give consideration as to how these noise complaints will be addressed should the City Council overrule the ALUC and approve the proposed project. Because of the frequency of the overflights, the ALUC does not agree with Finding Section (F) of the City's draft resolution stating that the aircraft overflights will be mitigated by the existing curfew at J WA. 75A -112 ALUC Heritage Overrule Response January 15, 2016 Page 3 Also, please be advised that California Business & Professions Code Section 11010 requires the following statement to be included on sale /lease disclosure documents for developments within an ALUC's "Airport Influence Area:" "NOTICE OF AIRPORT IN VICINITY This property is presently located in the vicinity of an airport, within what is known as an airport influence area. For that reason, the property may be subject to some of the annoyances or inconveniences associated with proximity to airport operations (For example: noise, vibration, or odors). Individual sensitivities to those annoyances can vary from person to person. You may wish to consider what airport annoyances, if any, are associated with the property before you complete your purchase and determine whether they are acceptable to you." Regarding the proposed residential component of the project, please refer to Attachment 5, which shows existing residential land uses in the project area. Note that the land uses on both sides of Red Hill Avenue from the JWA area northward to beyond the project site are comprised of non - residential uses. Such non - residential uses are clearly more compatible than residential uses under the JWA aircraft approach corridor. As stated in the JWA AEL UP, the ALUC has the responsibility to consider the broader perspective in matters affecting the public's well being and the viability of public aviation facilities. The ALUC accomplishes these overall goals by applying its discretion to evaluate individual projects based upon a wide range of facts and factors gathered through public testimony and Commissioners' knowledge, in addition to informative analysis provided by staff. By virtue of being clearly stated in JWA AELUP Sections 12 "Purpose and Scope" and 2.0 "Planning Guidelines, " every Commissioner understands the complex legal charge to protect the public airport environs from encroachment by incompatible land use development, while simultaneously protecting the health, safety and welfare of citizens who work and live in the airport's environs. To this end, and as also statutorily required, our ALUC proceedings are benefited by several members "having expertise in aviation." Based upon our careful consideration of all information provided, and input from our members with expertise in aviation, a majority of the ALUC found the proposed Heritage Project to be inconsistent with the JWA AEL UP. We urge the City Council of the City of Santa Ana to take all these matters into consideration in their deliberations prior to deciding whether to overrule the ALUC. Thank you for the opportunity to provide these comments. Sincerely, (. C� Ydl h've OM er Gerald A. Bresnahan Chairman 75A -113 ALUC Heritage Overrule Response January 15, 2016 Page a cc: Members of the Airport Land Use Commission for Orange County Members of City of Santa Ana City Council Gary Cathey, Chief /Division of Aeronautics 75A -114 Tuesday, September 15, 2015 Date/Time 9/15/2015 1:48 Gate EDYER Flight ID vV­RG710 Altitude 8-151 9/15/2015 7:22 EDYER 'FVWC60 735 EDYER �ZN2888 —629 9/15/2015 7:36 — EDYER �N N2939 607 9/15/2015 7:49 EDYER WN2916 584 �/15/201S 7-53 EDYER WN2669 628 9/15/2015 8:08 EDYER WN2656 650 9115/2015 8:12 EDYER WN2404 640 9/15/2015 8:17 EDYER \��NE286=�S 1�6�36 636 9/15/2015 8:28 TOYER —TV23SP '235P 9/15/2015 8:31 EDYER SKS612 631 �715/2015 8:36 EDYER PVE1600 605, 9/15/20115 8:40 EDYER AS-516 591 9/15(20158:4$ JEDYER PV708GP 710 9/15/2015 8:55 EDYER WN4599 615 9/15/2015 8:58 IEDYER AW410 635 9/15/2015 9:00 EDYER AS540 E2 9/15/20159:07 EDYER WN2020 651 9/15/20159:15 EDYER PV26S60 693 9/15/20159:16 -EDYER FV61FF 620 9'/15/20159:18 EDYER UA1155 600 9/15/20159:2Q EDYER PVMDB 567 9/15/20159:23 EDYER PVIIIY 611 9/15(20159:25 EDYER � WN2918 616 — 9/15/20159:32 ­ EDYER -- TC4797 619 9/15/20159:37 EDYER PV358PS 692 9/15/2015 9:40 EDYER WN-3094 —573 9/15/20159:42 9(15/20159:43 EDYER EDYER �WN2433 AA114 602 600 9/15/20159:49 9/-15/20159 52 9(-15120159:56 EDYER [DYER —EDYER WN1677 Pvn —iAj AA250-6 610 —667 593 9/15/2015 10:03 EDYER WN411 635 9/1512015 10:09 9/15/2015 10:14 EDYER EDYER PV2298E WN1717 625, 622 9/15/2015 10:16 EDYER A—SS06 582 9/15/2015 10:22 9/15/2015 10:27 - 9/15/20151029 9/15/2015 10:32 9/1512015 TO 40 9/15/2015 10:43 T/15/2015 M52 9/151201510:57 9/15/201511:03 EDYER EDYER --------------- EDYER EDYER EDYER EDYER EDYER EDYER EDYER P'VMAC WN1553 4 - ISK5628 WN2625 PV741E iV1275 FV1484B PV208CV PV6160D 549 625 — 637 6 9 51 A6069 555 599 75A -117 John Wayne Airport Normal Operation Arrivals Tuesday, September 15, 2015 9/15/2015 11:09 EDYER PV3596C 652 9/15/2015 11:13 EDYER �Wi-N2923 -610 9/151201511:18 EDYER UA214 597 9/15/2015 11:26 EDYER 6-L-2109 652 9/-15/201511 28 T6Y-ER'W-N525 -572 9/-15/201511 30 EDYER AW621 596 9/15/2015 11:31 EDYER A5502 649 9/15/201�11 3-3 EVER PV-7495S -648 9/15/201511:35 TOYER PV43R 552 9/15 .015 , 015 11' 9 12 -T-I-�L-)YER /15/2 - 37 --��-N2509 595 9/15/2015 11:43 9/1 /2 -5 01511 EDYER P9261 671 T/15/2015 Ili..47 9/1 /2 7 EDYER PV3331-IS 617 /1 S 201SIl 5 r) '�/15/2OT5 ESO EDYER PV788WF 604 9/15/2015 11:52 EDYER PVlVG 1 4-- 641 9/15/201511:54 EDYER AA1278 590 9/15/201511:57 EDYER W N515 642 9/15/201511:59 EDYER UNKNOWN 642 9/15 015 /15/2015 12:02 02 EDYER N�N614 611 9il5 015 1 �71 12 5/2015 12:21 EDYER L2257 632 �9115/2015 12M YER 'UA265 608 9/15/2015 12:20 JEDYER PV717GK 548 9/15/2015 12:30 EDYER PV136 R 667 9/15/201512:43 EDYER UA206 596 9/15/2015 12:46 EDYER UA1633 563 9/15/2015 12:57 EDYER WN2130 646 9/15/2015 12:59 - EDYER DL2089 599 9/15/2015 13:02 EDYER 5K6216 627 9/15/2015 13'.0;5 EDYER PVTM855 623 9/15/201513:10 EDYER PV 448CJ 561 9*/15/2015 13:14 EDYER AAISGO 573 9/15/201513:22 EDYER PVMSD 5771 9/15/2015 13:24 EDYER PV667H5 5531 9/15/201513:25 EDYER WN497 637 9115/2015 13:29 EDYER W N2852 575 9/15/2015 13:36 EDYER P7V5492U 769 9/15/2015 13:40 9/15/201513:42 EDYER EDYER PVIT602 WN2103 624 619 9115/2015 13:48 EDYER - ' FV 93GK 618 9/15/2015 13:54 EVER PV999DM 543 - 0- 5- /2- 01- 5 - 14- '04 �ED7- 9/15/201.5 14'06 9/15/201514:10 YER EDYER JEDYER WS 17 5 4 AS58 0 WN2719 606 63� 617 9/15/2015 14:14 JEDYER PV728PG 895 9/15/201514:15 9/15/2015 14:22 EDYER - EDYER ' TV NS426 PV366MH 583 673 9/15/201514:24 EDYER WN2653 621 9/15/201514:30 EDYER 7WN193 614 75A -118 9/15/201514;33 7FDYER PVWPE 5921 9/15/2015 14:35 EDYER PV248BT 631 9/15/2015 1437 EDYER WN301 616 9J15/2015 14A5 [DYER TA909 607 9/15/2015 14:52 EDYER )WN625 656 9/15/2015 14;54 FOYER �W667 603 9/15/2015 14:56 EDYER PVEJ696 628 9/15/2,0.15 14:57 JEDYER AA1599 603, 9/15/2015 15:00 DYER RVRS416 676 9/15/2015 15:05 EDYER PV1484B 635 9/15/2015 15:14 EDYER PV124PS —608 EDYER )TVN2376 658 9/15/2015 15:32 EVER WN2435 596 9/15/2015 15:37 EVER PV65710 587 �7i-5/201515: 39 EDYER UAS29 584, 9/15/20115 15:42 EDYER AA227 606 1/15/2015 16,,00 JEDYER �WN2338 682 9/15/2015 16:02 EDYER DL2563 612 9/15/201516A4 EDYER PT715WE 667 9/15/201516:09 EDYER PV2106L 600 7/15/2015 76-13 EDYER �WNISIO 642 9/15/201516:16 EDYER UNKNOWN— 589 9/15/201516:17 EDYER FM389 609 9/15/201516.35 EDYER PVTM995 638 9/15/2015 16:37 lEDYER WN2558 6251 9/15/201516:40 EDYER PVLX542 595 9/15/2015 16,41 EDYER TA2389 616 9/15/2015 16.43 EDYER PV87vm 659 9/15/2015 16:45 9/15/2015 16A7 9/15/201516:50 EDYER EDYER EDYER AS512 PV308CD PV527PS 644 570 545 9/15/201516:52 9/15/2015 16:54 EDYER EDYER PV90HG TN3145 633 609 9/15/2015 16:56 9/15/201516:59 EDYER EDYER SK6417 TV277PC 682 697 9/15/2015 17:01 9/15/201517:03 EDYER EDYER FV673HA W�N412 539 590 9/15/2015 17V 9/15/2015 17:16 9/15/2015 17:19W EDYER EDYER EDYER TV535C 5X2920 9: 'o �VI2386 L2386 696 623 2,S58 I 9/15/2015 17'20 9/15/2015 17:22 �R F�DYF EDYFR EDYER jqt3 UA19A3 WN1933 577 610 9/15/201517:31 9/15/2015 17:43 17:47 7/15/2015 1T49 9/15/2015 17:52 EDYER EDYER EDYER FDYER EDYER PVMRA T9265 SS92 TVCN735 WN164 595 649 632 637 559 75A -119 9/15/2015 17:54 EDYER IPV806LW 1,245 9/15J2015 17:59 EDYER T N1103 597 9/15/2015 18:02 9/15/2015 18:07 EDYFR IPV67ODD EDYER PVPFB98 694 638 9115/2015 18.09 9/15/2015 18,12 EDYER F)YER VVN1B4 WN440 617 606 9/15/2015 18:14 EDYER WN1387 615 9/15/2015 18:17 —1 EDYER TA1288 599 9/15/2015 18:23 EDYER WN2644 623 9/15/2015 18:25 FOYER PV463GR 708 9/15/201518:28 EDYER PVX0552 623 9/15/201518:33 TOYER WN1067 597 5/15/2015 18.35 — EDYER -'UA345 613 9/15/201518;40 F)YER SK5591 602 9/15/2015 18;46 EDYER AS528 611 9/15/2015 I8A7 EDYER AW660 609 1 9/15/2015 18:50 9/15/2015 18:53 EDYER F)YER PVDZ341 PVWCSO 649 5241 9/15/2015 18:56 EDYER PV586ED 522 5 01519,( 9 9/1 /2 /15/2015 19!01 EVER PV 15008 69 569 —::462 � 9/1 /15/20,s 19:11 EDYER ��N2041 9 .9 9/15/2015 19:15 EDYER UA420 619 9/15/201519:22 EVER PV485DS 627 9/15/2015 19:24 EDYER �WN3071 615 0 911-1/2015 19:26 EDYER PVEJ377 644 9/15/201519:31 EDYER PV236MA— 615 9/15/2015 19:33 9115/ C)1519 3 EDYER WN868 655 �/15/2015 1935 20 9/1 E/ 15 lg_ -35 EDYER DL2097 591 9/15/2015 19:37 9/15/ 15 jq� FOYER DL1251 597 9/15/2015 19:44 EDYER PV96808 693 9/15/2015 19-47 EDYER �WN2655 620 9/15/2015 19:49 EDYER AA2338 571 EDYER PV-86058 557 9/15/201519:55 EDYER AA2502 617 9/15/201519:58 F)YER WN208 625 9/1.5/201520:02 EDYER PVWC17 563 9/15/201520:04 EVER WN105 626. 9/15/201520:08 TOYER PV348M[ 542 9/15J2015 20:15 EDYER SK6407 722 9/15/201520:16 ER FRYER - PVMLS 623 - 9/15(201520'18 9/15/201520:21 9/1512015 20.26 EDYER EDYER EVER -E] TA1659 PVEJ352 WN122 51824 646 578 9/15/2015 20:37 EVER WN3033 728 9/15/2015 20:40 F)YFR TV805KK 645 9/15/201520:52 EDYER SC4651 586 T/15/2015 20:54 TOYER — �� N339 606 75A -120 75A -121 Wednesday, February 11, 2015 -Date /Time Gate----F�jghtlD -'Altitude 2/-11/2015 6:30 PVRG710 2,127 2/-11/20157.00 EDYER TW5 -93 2,171 2/11/2015 7.01 EDYER T9268 2,812 T/-11/20157 02 EDYER -K-860 -2,330 2/11/20157:03 EDYER WNFY)58 jt)d 21261 2 ' 261 2/11/2015 7:04 EDYER UA333 JE�2 27 2,277 2/-11/20157.07 EDYER -�WN-1634 5 E34 &7 2,533 , 5 33 2/11/2015 7M EDYER DL2441 2,516 T/11/2015 7--11 EDYER ' )WN1367 2,349 2/11/2015 7:13 EDYER TA1300 1,793 T/-11/20157.,16 EDYER SK-6502 -2,364 2/11/20157:17 EDYER WN2702 1,962 2/11/20157:19 EDYER U 1448 1,921 T/-11/20157.20 EDYER UA120-6 -2,039, i/-11/20157.21 EDYER TS-5 1-9 - 2,565 2/11/2015 7�,23 EDYER SC4742 2,507 2/11/2015 7:36 EDYER �WN3859 2,451 2/11/2015 7:49 EDYER WN454 2,256 2/11/2015 7:56 EVER PV445MD 2,599 2/11/2015 8:03 EDYER AAM6 1,851 i/-11/2015&07 EDYER U-A 14 2-0 2,223 2/11/2015 8:10 EDYER ��-NIOE-- 2,024 2/-11/20158:13 EDYER TS-S27 -2,077 2/11(20158 :17 2/11/2075 8:18 EDYER EDYER WN1366 AA 11-0 2,245 1,9S4 2/11/20158:22 EDYER -EDYER - PV-828DR WN37-64 2,181 2,059 T/-11/20158:27 T/1-1/20158-34 EDYER EDYER TA102-3 ";�-NC66 1,691 2,162 2/11/2015 8:36 2/11/20158:5-5E1-)YER EDYER DL1918 jA-1010 2,569 1,521 2/11/2015 8:56 T/-11/20159.02 2/11/20159:13 2/11/20159:20 2/11/2015 9:40 ----'YIR 2/11/2015 945 T/-11/20159'.47 2/11/2015 9:54 2/11/20151.0:03 2/1I/2015 10:15 2/-11/201510 16 1618 2/11/2015 107i2­FDY-F-E-9262 2/-11/201510,29 - EDYER -EDYER EDYER -7N-2-50-1,843 EDYER EVER EDYER EDYER --��-N3214 EDYER EDYER E-DYER--- EDYER - FOYER EDYER -S-K5195-'-' - EL- 2388 -AA244-1,767 �N4403 ASS87 T\ 78,986) -W-N522 AW507 AA1090 -ASSOI WN4641 -- -2,498 2,301 2,07 2,742 2 2101 2,306 1,902 2,18-2, 2,51.4 2,015 2,388 75A -123 John Wayne Airport Reverse Flow DepartLII*CS Wednesdm), February 2015 1 2/11/2015 1.0:31 EDYER PV845FP 2/11/2015 10:33 TOYER SC4797 1,586 2/11/201510:41 TOYER WN3236 X2,160 2/11/201510;51 TOYER TV299JM 2,305 71711/20175 10:54 2/11/201510:59 EDYER EDYER SK6343 WN4173 2,023 2,164 2/11/2015 111 EDYER YER ZA1176 1,849 2111/201511 ;16 -EDYER -UA331--2,248 2/11/20151118 EDYER PVEJ819 2,820 T/11/201571A 9 EDYER '� V N486 2,427 2/11/201511;27 EDYER -UAJ�4�3 1,909 2111(2015 11:37 EDYER TA376 2,286 2/11/2015 11:47 EDYER 7N1070 2,506 2/11/201512:12 EDYER PV40OKP 1,425 2/11/201512:16 TOYER )N624 2,042 2/11/2015 12:22 EVER AA1271 1,716 2/11/2015 12:28 TOYER WN23'26 2,543 2/11/201512:30 EVER A5513 2,243 2/11/201512:35 TOYER WN345 1,963 2111/2015 12:37 EDYER PV8587H 1,8751 2/11/201512:42 EDYER WN534 2,5561 2/11/201512:51 EDYER AW1712 1,645 2/11/2015 12:58 JEDYER SK6296 1,957 2111/2015 13.02 EDYER �WN4069 2,240 2/11/2015 13:04 EDYER QL1757 2,429 2/11/201513:09 EDYER DL820 2,225 2/11/201513:17 EDYER PV7506R 1,024 2/11/2015 13:18 EDYER DL2257 2,213 2/11/201513;20 EDYER WN4835 1,721 2/11/201513:22 EVER WN143 2,376 2/11/2015 13:24 EDYER PVCY540 1,753 13:33 2/11/201513:33 EDYER - UA1738 1,605 2/11/2015 13:36 EDYER WN2853 2,038 2/11/2015 13:42 EDYER �A1554 1,847 2/11/2015 1 00 /11/2015 14:00 EDYER N410 2,321 T2/11/2015 14:07 EDYER TVOP440 2,507 2/11/2015 14:11 EDYER �N4525 1,829 /11/2015 14:29 2/11/201514:29 S FDYER PV9015C 1,755 2/11/201514:30 EDYER PV24GF 2,024 2/11/2015 14:38 2/11/201514'42 2/11/201514:50 EDYER EDYER EDYER ASS83_ Pv6701D PV688D6 2,008 1 647 2,343 ---' 2/11/2015 14-52 EDYER WN1120 2,270 2/11/2015 14:55 2/11/2015 -- ��-57 EDYER - EDYER WiS1755 "�j N1064 2,051 2,145 2/11/2015 14:59 EDYER AA-1596 -1,857 2/11/2015,1539 EDYER WN392 2,397 75A -124 2/11/201521;15 EDYER WN640 F 2,88 6 2/11/201521:23 E OYER wN2o64 2,648 21111261 2P.25 =EDY RWFIT89 2"165 '4 ' IMMIM Average Altitude 2,174 4 75A -125 (ISW BAO(IR 4001) Opnjjj(14 75A.126 LU _, ,;� 9IDi1tGnL6.�76U i i3 W j v Q Sensitive Receptor Locations i 03 - Robert Heideman Elementary School m� i Oa • unfair, Academy of Tusim �$ O6- Tru0n Finally And Youth Center 00 O7- Century High School 10 • Jeans License Elementary School 4 3 12- Crin401 Barred Church of Coast, Caner, ® 2013 Existing No Contours - 3 13 • Cafdomla Yciory Church (n� Proposed Project Phase 3 Noise Contours id • Our lady of Guadalupe Curb Church Residential Land Uses .. r 19 - Monroe Elalnsnmty a j iB-Cnilaren's UOagn 6� 19•MOnixssnd lnientailcoal ACUdemy :.Q 20 • Ciscipte Church �(�{ d 21 • Now Life Church 1 a s ,n 23- La Puerto Astada Church a � 29- ASSOmbty of God Chuch N i iL"•S'e if -af i r -- _, ,;� 9IDi1tGnL6.�76U i i3 W j �Atauny anu rtvpuseu rruiect, rna5e 3 RpproaCn Noise Contours with Sensitive Land Uses _ John Wayne Airport Settlement Agreement Amendment t ' 2 oaa 1 000 0 2 she Feet 75A -127 Exhibit 4,5-4b Attachment 5 Yrt.. ✓.: vw< v P m� �$ } lm t3 Y 4 3 ® 2013 Existing No Contours (n� Proposed Project Phase 3 Noise Contours Residential Land Uses .. r �Atauny anu rtvpuseu rruiect, rna5e 3 RpproaCn Noise Contours with Sensitive Land Uses _ John Wayne Airport Settlement Agreement Amendment t ' 2 oaa 1 000 0 2 she Feet 75A -127 Exhibit 4,5-4b Attachment 5 Yrt.. ✓.: vw< 75A -128 Mail Processing Center Federal Aviation Administration Southwest Regional Office Obstruction Evaluation Group 2601 Meacham Boulevard Fort Worth, TX 76193 Issued Date: 04114/2015 Rachel Ogulnick Dyer 18 Holding LLC 8391 Beverly Blvd., Suite 587 Los Angeles, CA 90048 Aeronautical Study No. 2015 -AWP- 1655 -OE ** DETERMINATION OF NO HAZARD TO AIR NAVIGATION ** The Federal Aviation Administration has conducted an aeronautical study under the provisions of 49 U.S.C., Section 44718 and if applicable Title 14 of the Code of Federal Regulations, part 77, concerning: Stricture: Building The heritage Location: Santa Ana, CA Latitude: 33- 42- 28.56N NAD 83 Longitude: 117- 50- 39.88W Heights: 56 feet site elevation (SE) 68 feet above ground level (AGL) 124 feet above mean sea level (AMSL) This aeronautical study revealed that the structure does not exceed obstruction standards and would not be a hazard to air navigation provided the following condition(s), if any, is(are) met: It is required that FAA Form 7460 -2, Notice of Actual Construction or Alteration, be e -filed any time the project is abandoned or: _ At least 10 days prior to start of construction (7460 -2, Part I) —X-- Within 5 days after the construction reaches its greatest height (7460 -2, Part 2) Based on this evaluation, marking and lighting are not necessary for aviation safety. However, if marking/ lighting are accomplished on a voluntary basis, we recommend it be installed and maintained in accordance with FAA Advisory circular 70/7460 -1 K Change 2. This determination expires on 10/14/2016 unless: (a) the construction is started (not necessarily completed) and FAA Form 7460 -2, Notice of Actual Construction or Alteration, is received by this office. (b) extended, revised, or terminated by the issuing office. (c) the constriction is subject to the licensing authority of the Federal Communications Commission (FCC) and an application for a construction permit has been filed, as required by the FCC, within 6 months of the date of this determination. In such case, the determination expires on the date prescribed by the FCC for completion of construction, or the date the FCC denies the application. EXHIBIT D Page 1 of 5 75A -129 NOTE: REQUEST FOR EXTENSION OF THE EFFECTIVE PERIOD OF THIS DETERMINATION MUST BE E -FILED AT LEAST 15 DAYS PRIOR TO THE EXPIRATION DATE. AFTER RE- EVALUATION OF CURRENT OPERATIONS IN THE AREA OF THE STRUCTURE TO DETERMINE THAT NO SIGNIFICANT AERONAUTICAL CHANGES HAVE OCCURRED, YOUR DETERMINATION MAY BE ELIGIBLE FOR ONE EXTENSION OF THE EFFECTIVE PERIOD. This determination is based, in part, on the foregoing description which includes specific coordinates, heights, frequency(ies) and power. Any changes in coordinates , heights, and frequencies or use of greater power will void this determination. Any future construction or alteration , including increase to heights, power, or the addition of other transmitters, requires separate nonce to the FAA. This determination does include temporary construction equipment such as cranes, derricks, etc., which may be used during actual construction of the structure, However, this equipment shall not exceed the overall heights as indicated above. Equipment which has a height greater than the studied structure requires separate notice to the FAA. This determination concerns the effect of this structure on the safe and efficient use of navigable airspace by aircraft and does not relieve the sponsor of compliance responsibilities relating to any law, ordinance, or regulation of any Federal, State, or local government body. Any failure or malfimction that lasts more than thirty (30) minutes and affects a top light or flashing obstruction light, regardless of its position, should be reported immediately to (877) 487 -6867 so a Notice to Airmen (NOTAM) can be issued. As soon as the normal operation is restored, notify the same number. If we can be of further assistance, please contact our office at (425) 227 -2625. On any future correspondence concerning this matter, please refer to Aeronautical Study Number 2015 -AWP- 1655 -0E. Signature Control No: 243291373 - 248991200 Paul Holmquist Technician Attachment(s) Case Description Map(s) Page 2 of 5 75A -130 (DNE) Case Description for ASN 2015 -AWP- 1655 -OE The proposed mixed -use project would include multi - family rental units surrounding three 5 story parking garages, in addition to retail, commercial and office uses. There currently exists an existing 366,000sf warehouse that will he demolished to accommodate the new development. Page 3 of 5 75A -131 TOPO Map for ASN 2015 -AWP- 1655 -OE Page 4 of 5 75A -132 Sectional Map for ASN 2015 -AWP- 1655 -OE Page 5 of 5 75A -133 75A -134 The attached resolution addresses Recommended Actions 1, 3, and 5 from the Request for Council staff report: 1. Adopt a resolution certifying Final Environmental Impact Report No. 2015 -01 and approve the Mitigation Monitoring Program and Statement of Overriding Considerations. 3. Adopt a resolution approving General Plan Amendment No. 2015 -03. 5. Adopt a resolution approving Vesting Tentative Tract Map No. 2015 -03 as conditioned. EXHIBIT E 75A -135 75A -136 LS 1.25.16 RESOLUTION NO. 2016- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADOPTING FINDINGS AND A STATEMENT OF OVERRIDING CONSIDERATIONS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT; CERTIFYING FINAL ENVIRONMENTAL IMPACT REPORT NO. 2015 -01; ADOPTING THE MITIGATION MONITORING PROGRAM; APPROVING GENERAL PLAN AMENDMENT NO. 2015 -03; AND, APPROVING VESTING TENTATIVE TRACT MAP NO. 2015 -03 AS CONDITIONED FOR THE PROPERTY LOCATED AT 2001 EAST DYER ROAD BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting the certification of Environmental Impact Report (EIR) No. 2015 -01, the approval of General Plan Amendment No. 2015 -03 to amend the General Plan to change the land use designation from Industrial (IND) to District Center (DC), and the approval of Vesting Tentative Tract Map No. 2015 -03 to allow construction of The Heritage mixed -use development project that would include 1,221 apartment homes, 12,675 square feet of retail commercial space, and 5,415 square feet of restaurant space on an 18.84 acre parcel of land at 2001 East Dyer Road. B. On October 12, 2015, the Planning Commission held a duly noticed public hearing and voted to recommend that the City Council: (1) adopt a resolution certifying Final Environmental Impact Report No. 2015 -01 and approving the Mitigation Monitoring Program, Findings of Fact and Statement of Overriding Considerations; (2) adopt a resolution approving General Plan Amendment No. 2015 -03; and, (3) adopt a resolution approving Vesting Tentative Tract Map No. 2015 -03 as conditioned, for the proposed project. C. On February 2, 2016, the City Council of the City of Santa Ana held a duly noticed public hearing to consider all testimony, written and oral, related to Final Environmental Impact Report No. 2015 -01, General Plan Amendment No. 2015 -03, and Vesting Tentative Tract Map No. 2015 -03, at which time all persons wishing to testify were heard, the project was fully Resolution No. 2016 -XXX Page 1 of 16 75A -137 considered, and all other legal prerequisites to the adoption of this Resolution occurred. D. Pursuant to the California Environmental Quality Act (Pub. Res. Code, § 21000 et seq., "CEQA"), and the State CEQA Guidelines the City has determined that an Environmental Impact Report ( "EIR ") should be prepared pursuant to CEQA in order to analyze all potential adverse environmental impacts of the proposed Project. Pursuant to Public Resources Code section 21067 and the State CEQA Guidelines (Cal. Code Reg., tit. 14, § 15000 et seq.) section 15051, the City is the lead agency for the proposed Project. 2. In accordance with CEQA, the recommended actions have been reviewed through an environmental impact report, EIR No. 2015- 01. Sections 15080 through 15097 of the State CEQA Guidelines (Article 7) guide the process for the preparation of an environmental impact report. 3. The EIR, as required by CEQA, contains: 1) an initial study; 2) a project description; 3) a description of the environmental setting, potential environmental impacts, mitigation measures for any significant effects, and consistency with plans and policies; and 4) names of preparers. The mitigation measures included in this EIR are designed to reduce or eliminate the potentially significant environmental impacts described herein. The scope of the EIR evaluates the proposed project's effects on the following resource topics: aesthetics, air quality, biological resources, cultural resources, geology and soils, greenhouse gas emissions, hazards and hazardous materials, hydrology and water quality, land use and planning, noise, population and housing, public services, recreation, transportation and traffic, and utilities and service systems. 4. The City prepared a draft EIR and published the Notice of Availability (NOA) in the Orange County Register as well as posted the NOA at the Orange County Clerk's office on July 16, 2015, The City circulated the draft EIR for a 45 -day public review between July 17, 2015 and August 31, 2015. The draft EIR was available for public review at the Santa Ana City Hall, the City of Santa Ana Main Library, and on the City's website. 5. During the 45 -day public review period, the City held a regularly scheduled public hearing with the Planning Commission on August 24, 2015, to receive comments regarding the Draft EIR. Resolution No, 2015 -XXX Page 2 of 16 75A -138 6. The City received a total of eight written comment letters during the public review period and evaluated all comments received from the persons or agencies that reviewed the Draft EIR. Pursuant to Section 15088 of the State CEQA Guidelines, the City, as the lead agency for the project, has reviewed all comments received on the document. The City provided written responses to all agencies and members of the public commenting on the Draft EIR at least 10 days prior to the Planning Commission hearing and 30 days prior to certification of the EIR. 7. The City has prepared a Final EIR, consisting of comments and recommendations received during the 45 -day public review and comment period on the Draft EIR, written responses to those comments, and revisions and clarifications to the Draft EIR in response to those comments. For the purposes of this Resolution, the "EIR" shall refer to the Draft EIR, including all of the technical studies and appendices to the Draft EIR, as revised by the Final EIR's revisions, together with the other sections of the Final EIR, including all of the technical studies, attachments and appendices to the Final EIR. 8. Findings of Fact with respect to environmental impacts, including environmental impacts identified in the Final EIR as potentially significant, but which the City finds can be substantially lessened through the imposition of feasible mitigation measures identified in the Final EIR, are described in Exhibit A attached hereto and incorporated herein by this reference. 9. As a result of the environmental analysis, two significant impacts were found from the construction of the proposed project that pertains to air quality and traffic, Accordingly, the City has also prepared a Statement of Overriding Considerations in compliance with Public Resources Code Sections 21081 and CEQA Guidelines Section 15093, which finds that specific economic, legal, social, technological or other benefits of the proposed project outweigh the significant and unavoidable impacts identified in the EIR, as described in Exhibit 6 attached hereto and incorporated herein by this reference, 10. Mitigation measures have also been provided to address potential environmental impacts, with a list of these mitigation measures found within the Mitigation Monitoring and Reporting Program attached hereto as Exhibit C and incorporated herein by this reference. Mitigation measures have been outlined to address potential impacts on air quality, noise, transportation and traffic, utilities and service systems, and climate change, Resolution No. 2016 -XXX Page 3 of 16 75A -139 11. All the requirements of CEQA and the State CEQA Guidelines have been satisfied by the City in the Final EIR, which is sufficiently detailed so that all of the potentially significant environmental effects of the proposed project have been adequately evaluated. 12. The Final EIR prepared in connection with the proposed project sufficiently analyzes both the feasible Mitigation Measures necessary to avoid or substantially lessen the proposed project's potential environmental impacts and a range of feasible alternatives capable of eliminating or reducing these effects in accordance with CEQA and the State CEQA Guidelines, 13. All of the findings and conclusions made by the City Council pursuant to this Resolution are based upon the oral and written evidence presented to the City Council as a whole and not based solely on the information provided in this Resolution. 14. Prior to taking action, the City Council has heard, been presented with, reviewed and considered all of the information and data in the administrative record, including the Final EIR, and all oral and written evidence presented to it during all meetings and hearings, all of which is incorporated herein by this reference. 15. The City has not received any comments or additional information that produced substantial new information requiring recirculation or additional environmental review under Public Resources Code sections 21166 and 21092.1 and State CEQA Guidelines section 15088.5. E. General Plan Amendment No. 2015 -03 has been filed to amend the General Plan to change the land use designation from Professional and Administrative Office (PAO) to District Center (DC). 1. Currently, the land use designation for this site is Professional and Administrative Office (PAO), which allows office development and ancillary commercial uses, This project will require amendments to the Land Use Element, including amending the General Plan Land Use designation to District Center (DC) with a General Plan floor area ratio of 1.70. The floor area ratio was derived from the size of the proposed buildings as well as the square footage of the existing structures on the site. 2. The proposed project will be consistent with several goals and policies of the recently adopted Housing Element. First, the project is consistent with Goal 2, which encourages diversity of quality housing, affordability levels, and living experiences that accommodate Santa Ana's residents and workforce of all Resolution No. 2015 -XXX Page 4 of 16 75A -140 household types, income levels and age groups to foster an inclusive community. Second, the project supports Goal 4, to provide adequate rental and ownership housing opportunities and supportive services. Further, the project is consistent with Policy HE -2.2 to create District Centers with high intensity, mixed -use urban villages and pedestrian oriented experiences; and Policy HE- 2.4 to facilitate diverse types, prices and sizes of housing. 3. 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. 2015 -03 is consistent with the purpose of the general plan. Vesting Tentative Tract Map No. 2015 -03 has been filed seeking approval of a vesting tentative tract map to subdivide the site into six parcels. To adopt a Vesting Tentative Tract Map, California Government Code Section 66474 requires the following findings: The proposed project, as conditioned, and its design and improvements are consistent with the District Center designation on the General Plan and are otherwise consistent with all other elements of the General Plan. The proposed subdivision, Vesting Tentative Tract Map No. 2013 -04, will be consistent with the proposed District Center land use designation. and density prescribed and all other elements of the General Plan. Policy No. 1.3 of the General Plan Land Use Element encourages high- density residential development within the City's District Centers. Further, Policy No. 1.4 promotes the maintenance and fostering of a variety of residential land uses in the City, H. The proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. The proposed subdivision conforms to the requirements and intent of the provisions of the State of California Subdivision Map Act. Further, the map is in keeping with the Site Plan Review (Development Project No. 2014 -20) and Chapter 34 and 41 of the Santa Ana Municipal Code. Covenants, Conditions and Restrictions (CC &Rs) are required for the project, Resolution No. 2016 -XXX Page 5 of 16 75A -141 which need to be approved by the City prior to City Council approval of the final map. iii. The project site is physically suitable for the type and density of the proposed project. There are no physical constraints on the site that would preclude development. The proposed site consists of approximately 18.84 -acres of land and is physically suitable for the development as proposed. Access to the site will occur on both Dyer Road and Redhill Avenue. V. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. An Environmental Impact Report was prepared pursuant to the California Environment Quality Act for the project. The project site is located in an urbanized area, and there are no known fish or wildlife populations existing on the project site. Therefore, the proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. V. The design or improvements of the proposed project will not cause serious public health problems. The proposed subdivision is not going to have any detrimental effects upon the general public. The short -term and long -term impacts identified in Environmental Impact Report No. 2015 -01 as it pertains to air quality and traffic and transportation, can be addressed by a Statement of Overriding Considerations by the City Council. Any other negative or adverse impacts will be mitigated through mitigation measures identified in the environmental impact report. vi. The design or improvements of the proposed project will not conflict with the easements acquired by the public at large for access through or use of property within the proposed project. There is no easement for public access currently existing on this property. Therefore, the proposed Resolution No. 2015 -XXX Page 6 of 16 75A -142 project will not conflict with easements necessary for public access through or use of the property. However, the applicant will be granting an easement for pedestrian and vehicular purposes over the southern portion of the site to the adjacent hotel use. Public access will be provided from Dyer Road and Redhill Avenue. Section 2. Certification. The City hereby finds that (1) the EIR has been prepared, processed, and noticed in accordance with CEQA and the State CEQA Guidelines; (2) the EIR was presented to the City Council and the City Council has reviewed and considered the information contained in the EIR prior to considering adoption of the project, and (3) the EIR reflects the independent judgment and analysis of the City Council and is deemed adequate for the purposes of making decisions on the merits of the Project. Based on all of the above findings, the City hereby certifies the EIR. Section 3. CEQA Findings. The City hereby adopts the CEQA Findings, which were prepared in accordance with Public Resources Code section 15091 and which are attached hereto as Exhibit A and incorporated herein by this reference as if fully set forth herein. Section 4. Statement of Overriding Considerations, The City hereby adopts the Statement of Overriding Considerations made in connection with the approval of the project pursuant to CEQA Guidelines Section 15091, which is attached hereto as Exhibit B and incorporated herein by this reference as if fully set forth herein. Section 5. Mitigation Monitoring Program. Pursuant to Public Resources Code section 21081.6, the City Council hereby adopts the Mitigation Monitoring Program attached hereto as Exhibit C and incorporated herein by this reference as a condition of approval of the project. The City finds that Mitigation Monitoring Program is designed to ensure that, during the implementation of the Project, the City and any other responsible parties implement the components of the Project and comply with the mitigation measures identified in the Mitigation Monitoring Program. Section 6. Wildlife Resources. 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. However, pursuant to Fish and Game Code § 711.2 and Title XIV, CCR § 735.5, the payment of Fish and Game Department filing fees in conjunction with this project is at the discretion of the State of California Department of Fish and Wildlife, Resolution No. 2016 -XXX Page 7 of 16 75A -143 Section 7. Approvals. Based on the entire record before the City Council, all written and oral evidence presented, the CEQA Findings, the Statement of Overriding Considerations, and the Mitigation Monitoring Program, all attached and incorporated herein as Exhibit A, Exhibit B, and Exhibit C to this Resolution, the City Council of the City of Santa Ana hereby; A. Adopts the CEQA findings, adopts the Statement of Overriding Considerations, and certifies Final Environmental Impact Report No. 2015 -01, and approves the mitigation monitoring program for The Heritage project; B. Approves General Plan Amendment No. 2015 -03; and, C. Approves Vesting Tentative Tract Map No. 2015 -03 as conditioned in Exhibit b attached hereto and incorporated herein. These decisions are based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Council Action dated February 2, 2016, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. Section 8. Indemnification. The applicant agrees to indemnify, hold harmless, and defend the City of Santa Ana, its officials, officers, agents, and employees, from any and all liability, claims, actions or proceedings that may be brought arising out of its approval of this project, and any approvals associated with the project, including, without limitation, any CEQA review or approval, except to the extent caused by the negligence of the City of Santa Ana. Section 9. Ordinances, This Resolution shall not be effective unless and until Ordinance No. NS- (AA No. 201.4 -04) and Ordinance No. NS- (development Agreement No. 2015 -03) become effective. If said ordinances are for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise do not go into effect for any reason, then this resolution shall be null and void and have no further force and effect. Section 10. Judicial Review. These decisions rendered by the City Council of the City of Santa Ana are final and are subject to judicial review pursuant to California Code of Civil Procedure section 1094.6. The Planning and Building Agency shall give direct notice to the applicant of the City Council's decisions and these findings. Section 11. Location of Documents and Custodian of Records. The documents and materials that constitute the record of proceedings on which the CEQA Findings in Exhibit A of this Resolution have been based are located at 20 Civic Center Plaza, Santa Ana. The custodian for these records is the Santa Ana Clerk of the Council. This information is provided in compliance with Public Resources Code section 21081.6. Resolution No. 2015 -XXX Page 8 of 16 75A -144 Section 12. Notice of Determination. The City Council hereby directs staff to file a Notice of Determination with the County of Orange within five (5) working days of final Project approval. ADOPTED this _ day of 2016. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By:.... C <i- _ c Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2016 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on 2016. Date: Clerk of the Council City of Santa Ana 75A -145 Resolution No. 2016 -XXX Page 9 of 16 Resolution No. 2015 -XXX Page 10 of 16 Exhibit A California Environmental Quality Act Findings 75A -146 Statement of Facts and Findings 1.0 Introduction The California Environmental Quality Act (CEQA) requires that a Lead Agency issue findings prior to approvhng a project that will generate a significant impact on the environment. The Statement of Facts and Findings identifies the significant impacts and presents facts supporting the conclusions reached in the analysis, makes one or more findings for each impact, and explains the reasoning behind the agency's findings. As described by CEQA Guidelines Section 15091 (a) "No public agency shall approve or carry out a projectfor which an EIR has been certified which identifies one or more significant environmental effects of the project unless the public agency makes one or more written findings,for each of those significant effects, accompanied by a brief explanation of the rationalefor each finding. " There are three possible finding categories available for the Statement of Facts and Findings pursuant to Section 15091 (a) of the CEQA Guidelines. (1) Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the final EIR. (2) Stich changes or alterations are within the responsibility and jurlsdletion of another public agency and not the agency malting the finding. Stich changes have been adopted by such other agency or can and should be adopted by such other agency. (3) Specific economic, legal, social, technological, or other considerations, including ,provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR. A Statement of Overriding Considerations is also required when a project will cause unavoidable significant impacts, and the Lead Agency may still approve it project where its benefits outweigh the adverse impacts. Further, as provided in the Statement of Overriding Considerations, the Lead Agency sets forth specific reasoning by which benefits are balanced against effects, and approves the proj ect. Pursuant to California Code of Regulations (CCR), Title 14, Section 15090, the City of Santa Ana, the CEQA Lead Agency, finds and declares that the Eeitage Mixed Use Proj cot Environmental Impact Report (EIR) has been completed in compliance with CEQA and the CEQA Guidelines. The City of Santa Ana finds and certifies that the EIR was reviewed and information contained in the EIR was considered prior to approving the IIeritage Mixed Use project, herein referred to as the "project ". 75A -147 Statement of Facts and Findings Based upon its review of the EIR, the Lead Agency finds that the EIR is an adequate assessment of the potentially significant environmental impacts of the project, represents the independent judgment of the City, and sets forth an adequate range of alternatives to this project. 2.0 Project Description The proposed project would redevelop the project site to provide a mixed -use development consisting of a total of 1,221 multi- family apartments in the upper three floors of three five -story buildings; commercial retail space on the bottom two floors; retainment of the existing office uses, and provision of park and recreation open space and facilities. The proposed land uses would require a General flan Amendment from the existing land use designation from PAO (Professional and Administrative Office) to District Center. In addition, a zone change from M -1 (Light Industrial) to a Specific Development designation would be required. The tallest point on the proposed five -story ruixed -use buildings world be 67 -feet 6- inches from ground level. Areas of the first and second floors of these three buildings would be developed to provide commercial retail space totaling 12,675 square feet and restaurant space totaling 5,415 square feet. The multi - family units would be for rental purposes and would be developed at a density of 65 dwelling units per acre (etu/ac) (1,221 total units on 18.84 acres). The residential units would range in size from 512 square foot studios to 1,290 square foot one, two, and three- bedroom Emits, and would have between 41 square feet and 71 square feet of outdoor terrace area. The existing 366,000 square foot office /warehouse building would be reduced in size by removing the warehouse space. The two -story 56,000 square foot office building and associated surface parking that provides 102 spaces would be reconfigured. hi addition, the exterior of the office building would be remodeled and the existing emergency generator for the data center would be relocated from its existing location to another location o:nsite. Architecture and Design The proposed architectural design of the project would provide a complete community by integrating the buildings, public spaces, and green spaces. Each building would provide a unique, but similar to one another, contemporary and modern architectural expression. The proposed design colors are earth tones, including off- white, beige, brown, grey color shades. The ground floor retail uses and common areas would be developed as pedestrian - oriented frontages. In addition, the site design would also include pedestrian/bicycle paths to provide for non - vehicular onsite circulation. Open Space / Recreation The proposed proj ect includes both public and private (for residents) open space and recreational facilities on the proj ect site. A 1.01 -acre public central park would be developed in the northern portion of the project site. The central park area would include an outdoor theatre, public art/sculpture, playground, and walking paths that would comiect to the open space along the northern and eastern boundaries of the project site. The open space along the northern and eastern boundaries of the project site would provide a putting green, a par The Heritage Mixed W. PmJ..1 2 ESA) 140730 Statement of Facts and Findings September 2010 75A -148 Statement of Foots and Findings course/walking/running trail with seating, and a dog run. In addition, courtyards, roof terraces, and perimeter plazas would provide recreation amenities for residents that would include three pool and spa areas, fire pits, outdoor barbeque areas, a fitness area, a community center, tennis and basketball courts, and a children's play area. Each building would have a common area rooftop deck with outdoor kitchen and seating areas. Parking Facilities The project would provide a variety of parking facilities to serve each onsite use. Each residential building would have an above grade parking structure that provides 1,71 spaces per unit. In addition, the office building would utilize a 102 -space surface parking lot that is located at the office building entrance. The project would provide a total of 2,334 parking spaces, which includes 1,907 parking spaces for residents, 102 parking spaces for the office building, and 325 guest and commercial parking spaces. City Sewer Line Improvement As described in Section 3.14, Utilities and Service Systems, approximately 1,000 feet of the existing 10 -inch sewer line (from the proj ect driveway on Dyer Road to the intersection of Red Hill Avenue) would be replaced with a 12 -inch line to provide additional capacity between the proposed sewer connection at the project site and the existing 39 -inch trunk sewer in Red Hill Avenue. The 39 -inoh trunk sewer in Red Hill Avenue has sufficient capacity, and no improvements would be required. Construction Construction activities are anticipated to begin in June 2016 and end in July 2020. The proposed project would be developed in three phases and would include development of one building per phase. In addition, construction of the central park area and exterior improvements to the office structure would be completed during the first phase. Over excavation is anticipated to extend to a depth of eight feet below existing site grades. Grading for the project would be balanced onsitc, meaning that no unport or export of excavated soil would be required. Approximately, 25 truck trips per day would occur during demolition and construction activities to transport building materials and construction equipment to the site, and to dispose of demolition and construction debris. 3.0 Project Objectives The following objectives have been identified by the applicant and the City for the proposed project: Redevelop existing underutilized parcels to implement a mixed -use development that will provide a balance of land uses, public open space, and neighborhood serving retail that will promote the "co-benefits" of community livability, pedestrian walkability, mobility, prosperity and sustainability. The Heritage Mixed Use Project 3 ESA 1140730 Statement or Facts and Findings September 2016 75A -149 Statement of • Redevelop existing land uses that would utilize existing infrastructure, including: water, sewer, arterial roadways, transit, and freeways; and provide non - vehicular (pedestrian and bicycle) circulation. • &nplement rehabilitation of underutilized properties to encourage increased levels of capital investment and enhance the City's economic and fiscal viability pursuant to the City of Santa Ana Strategic Plan. • Provide a business environment that is safe and attractive and mects the needs of employment centers by providing new housirng opportunities close to jobs with onsite retail and public open space. • Implement Southern California Association of Government's Regional Comprehensive Plan by providing additional housing near existing employment centers. • Promote the City's image within the regional activity center by creating an improved gateway image to the City. 4.0 Effects Determined to have No.lmpact in the Initial Study /Notice of Preparation The City of Santa Ana prepared an Initial Study/Notice of Preparation for the proposed proj cot to determine potentially significant effects of the project. In the course of this evaluation, it was determined that the project would not result in impacts to several environmental resource areas. The Initial Study/Notice of Preparation was circulated for public review from Wednesday, January 21, 2015 through Friday, February 20, 2015. The following effects were determined not to be significant in the Initial Study/Notice of Preparation, and were not analyzed in the Draft EIR; refer to Appendix A of the Draft EIR. Aesthetics • Have a substantial adverse effect on a scenic vista. • Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway. Agricultural and Forest Resources • Convert Prime Farmland, Unique Famitand, or Fa stand of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Progran of the California Resources Agency, to non - agricultural use. • Conflict with existing zoning for agricultural use, or a Williamson Act contract. Conflict with existing zoning for, or cause rezoning of, forest land (as defined in Public Resources Code section 12220(8)), timberland (as defined by Public Resources Code section The aedtage Mixed Use PmJeot Statamenf of Feafs and Findings 75A -150 ESA 1140730 September 2016 4526), or timberland zoned Timberland Production (as defined by Government Code section 51104(g)). • Result in the loss of forest land or conversion of forest land to non4orest use. Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland, to non - agricultural use or conversion of forest land to non - forest use. Air Quality • Create objectionable odors affecting a substantial number of people. Biological Resources • Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special- status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Wildlife or U.S. Fish and Wildlife Service. • I -lave a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the California Department of Fish and Wildlife or U,S. Fish and Wildlife Service. • Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means. • Interfere substantially with the movement of any native resident or m gratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites. • Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance. • Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or skate habitat conservation plan. Cultural Resources Cause a substantial adverse change in the significance of a historical resource as defined in Sectionl5064.5. • Disturb any human remains, including those interred outside of formal cemeteries. The I xltsgo WOO Usa PPGJuct Slefement Of Fects and Findings 75A -151 ESA/1h0730 September 2015 Statement of Facts and Rndings Geology and Soils Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death, involving; 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, or o Landslides. + Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems in areas where sewers are not available for the disposal of wastewater. Hazards and Hazardous Materials + Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials. • Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one - quarter mile of an existing or proposed school. • For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area. + Expose people or structures to a significant risk of loss, injury, or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands. Hydrology and Water Quality • 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. Place strictures within a 100 -year flood hazard area, floodway, or floodplain which would impede or redirect flood flows. 4 Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam; or Inundation by seiche, tsunami, or mudflow. Land Use and Planning • Conflict with any applicable habitat conservation plan or natural community conservation plan. Physically divide an established community. The Harltage Mixed Use Project Statement of facts end Findings 75A -152 ESA 1140730 September 2015 Mineral Resources • Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state. • 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. Noise • Expose people residing or working in the project area to excessive noise levels related to a private airstrip. Population and Housing • Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere. • Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere. Transportation and Traffic • 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. • Substantially increase hazards due to incompatible uses (e.g., farm equipment). • Result in inadequate emergency access. • Conflict with adopted policies, plans, or programs regarding public transit, bicycle, or pedestrian facilities, or otherwise decrease the performance or safety of such facilities. 5.0 Effects Determined to be Less than Significant in the EIR The Heritage Mixed Use Project Draft EIR found that the project would result in less than significant impacts and no mitigation is required for a number of enviromnental topic areas. Therefore, a less than significant environmental impact determination was made for each of the topical impact areas listed below: • Aesthetics (character, light and glare, cumulative) • Air Quality (consistency with regional plans and localized air quality) • Geology and Soils (erosion and cumulative) • Greenhouse Gases (constriction and policy consistency) The hledlage Mixed Use Project 7 ESA/ 140730 Statement of Facts and Fllndings Septernter 2010 75A -153 Statement of recta and Flndings Hazards and Hazardous Materials • Hydrology and Water Quality • Land Use and Planning (plan slid policy consistency) Noise ('short -tern construction noise impacts, construction - related vibration impacts, and short -tern cumulativeinjpacts) . • Population and Housing Public Services • Parks and Recreation f Traffic (Congestion Management Program) Utilities and Service Systems The less than significant environmental impacts are described below. The City of Santa Ana finds that the project would not result in significant impacts related to the following environmental topics; A. Facts The project would not substantially degrade the existing visual character or quality of the site and its surrolmdings. Implementation of the project would result in a strong visual contrast from existing conditions. The character of the site would change from an industrial/warehouse/office nature to a residential, urban mixed -use village that would have a unifying modem architectural theme. However, a substantial degradation of the visual character or quality would not occur. The project site currently has very limited (if any) visual character or interest. The project would enhance and reinforce the existing urban, mixed -rise character of the project site and surrounding area, by providing a mixed use that would integrate buildings, public spaces, slid green spaces. Furthermore, the project would be designed in accordance with applicable City of Santa Ana design guidelines and requirements. As a result, the project would not substantially degrade the existing visual character of the site or surrounding area, and impacts would be less than significant. 2. The project would not create a substantial new source of substantial light or glare which would adversely affect day or nighttime views in the area. All outdoor lighting installed for the project are required to be hooded, appropriately angled away from adjacent land uses, and would comply with the City's Municipal Code regulations related to lighting (Municipal Code Division 3, Building Security Regulations), which includes specifications for shielding and intensity of security lighting. The lighting used for the project would not introduce a significant new source of additional lighting to area as existing developed land uses currently contribute to existing moderate to high levels of nighttime lighting. Therefore, less- than - significant impacts related to lighting would occur, The Hedtage Mlxed Use Project 8 ESA � 140730 Statement of Facts and Flndings September 2016 75A -154 Statement of Facts and Findings The project would not use highly reflective surfaces, does not include large areas of glass on the buildings, and a majority of vehicle parking would be located within parking structures. Therefore, the project would not generate substantial sources of glare, and impacts would be less than significant. The character and quality of the project would be similar to and consistent with the existing viewshed and related proj ects within the viewshed that are proposed, including those within the Tustin Legacy and Irvine IBC areas. Therefore, implementation of the project, when combined with the past, present, and reasonably foreseeable cumulative projects, would not result in a cumulatively considerable degradation to the existing visual character or quality of the environment. As a result, cumulative impacts related to visual character and site quality would be less than significant. 4. With compliance with the existing Cities of Santa Ana and Irvine Municipal Codes, City of Tustin Zoning Code, and Marine Corps Air Station (MCAS) Tustin Specific Plan regulations, the proposed project would not combine with the related projects to result in a cumulatively adverse impact related to lighting or glare. Therefore, implementation of the proj cot, when combined with the past, present, and reasonably foreseeable cumulative projects would not be cumulatively considerable. As a result, cumulative impacts related to light and glare would be less than significant. B. Findings The City finds that: 1. The Heritage Mixed Use project would not create permanent adverse impacts related to degradation of the existing visual character or quality of the site and its surroundings, and would not create a new source of substantial light or glare which would adversely affect day or nighttime views in the area. In addition, the project would not result in a cumulatively considerable impact when, combined with the past, present, and reasonably foreseeable cumulative proj ects. Thus, these impacts would be less than significant, and no mitigation measures are necessary. Air Quality A. Facts 1. The project would not conflict with or obstruct implementation of the applicable air quality plan. The project would develop residential in proximity to employment and transit services, which would reduce vehicular emissions and is consistent with the Air Quality Management Plan (AQMP), Although the project would require a. General Plan Land Use designation change, the increase in population and housing units generated by the project would be within the projected growth hi the combined three City local area and the County, and the project would reduce the jobs - housing ratio, which is consistent with the AQMP. Therefore, the project would result in less than significant impacts related to conflict with or obstruction of implementation of the AQMP. 2. The project would not expose sensitive receptors to substantial pollutant concentrations. The peak hour traffic at all of the intersections would be less than the applicable thresholds related to CO The Heritago Mixed Use Project Slatomorf of Facts and Findings 75A -155 ESA 1140730 Seplember 2015 hotspots; therefore, CO emissions would be less than significant. Additionally, the emissions generated by the project would not exceed the applicable SCAQMD localized construction or operational air quality thresholds. Therefore, localized impacts related to localized construction and operational impacts would be less than significant, In addition, emissions of toxic air contaminants (TACs) related to diesel particulate matter from construction equipment, the onsite emergency generator, and adjacent active rail line would not exceed the thresholds of significance. Therefore, the project would result in less than significant impacts related to exposure of sensitive receptors to substantial pollutant concentrations. B. Findings The City finds that: 1. The Heritage Mixed Use project would not create permanent adverse impacts related to conflict with or obstruction of implementation of the AQMP, and would riot expose sensitive receptors to substantial pollutant concentrations. Thus, these air quality related impacts would be less than significant, and no mitigation measures are necessary. Geology and Soils A. Facts 1. The project would not result in substantial soil erosion or the loss of topsoil. The project would be required to be implemented in compliance with the Construction General Permit and a SWPPP prepared by a Qualified SWPPP Developer (QSD) and implemented by a Qualified SWPPP Practitioner (QSP), which would ensure that construction - related impacts from erosion and siltation from the project would be less than significant. 2. The project would not result in a significant cumulative impact related to geology and soils, The project would be required to be i nplomented in compliance with (California Building Codes) building codes, which reduces impacts to a less than significant level. All other projects within the County are subject to similar seismic hazards and are subject to CBC building codes to reduce potential effects related to seismic events. Therefore, the project would not result in impacts that could combine with other existing, future, or foreseeable projects; and the project would result in less than significant cumulative impacts related to geology and soils. Implementation of a site - specific SWPPP and BMPs as required by Construction General Permit would minimize the potential for soil erosion from project construction. All planned projects in the vicinity of the project are subject to conformance with the same Construction General Pennit and the local grading and building code requirements, which reduce potential impacts related to erosion and seismic hazards to less than sigm fucant levels. With implementation of existing regulatory requirements, the project when combined with the past, present, and reasonably foreseeable cumulative projects would result in less than significant cumulative impacts related to erosion. The Hedlege Mixed Use Project 10 Sietamonl of Facts and Flndln9s 75A -156 ESA 1140730 September 2015 Facts and B, Findings The City finds that: The Heritage Mixed Use project would not result in substantial soil erosion or the loss of topsoil, significant cumulative impacts related to geology and soils, or significant cumulative impacts related to soil erosion. Thus, these geology and soils related impacts would be less than significant, and no mitigation measures arc necessary, Greenhouse Gas Emissions A. Facts I. The project would not result in substantial greenhouse gas (GHG) emissions during construction. The project's total estimated GHG emissions from construction would be much less than the emissions threshold. As a result, GHG emissions related to construction activities would be less than significant. 2. The project would not result in conflict with a California Air Resources Board (CARB) Scoping Plan policy or regulation adopted for the purpose of reducing the emissions of greenhouse gases. Out of the Recommended Actions contained in CARB's Seeping Plan, the actions that are most applicable to the project would be related to energy efficiency, green buildings, and water use efficiency, The project would be designed to comply with the CalGreen Code to ensure that resources (energy, water, etc.) would be used efficiently. Therefore, the proj ect would result in less than significant impacts related to CARB's Scoping Plan. 3. The proj ect would not result in conflict with a Southern California Association of Governments (SCAG) 2012 -2035 Regional Transportation Plan/Susta suable Communities Strategy (RTP /SCS) policy or regulation adopted for the purpose of reducing the emissions of GHG. The project would be consistent with the applicable RTP /SCS goals, which includes goals related to the protection of the environment and health of residents by improving air quality and encouraging active transportation (non - motorized transportation, such as bicycling and walking). The project is consistent with this goal because it would include bicycle and pedestrian connectivity between the onsite residential, retail, restaurant, park, recreation, and office uses. In addition, applicable RTP /SCS goals include encouraging land use and growth patterns that facilitate transit and non- motorized transportation, The project is consistent with this goal because it is located adjacent to existing public transportation that provides connectivity to nearby regional Metrolink transit, B. Findings The City finds that: The heritage Mixed Use project would not result in substantial greenhouse gas emissions during construction. In addition, the project would not result in a conflict with any applicable CARD Seeping Plan or SCAG 2012- -203.5 RTP /SCS policy or regulation adopted for the purpose of reducing the The Hodtgo Mixed Use Project t l ESAI 140730 Statement of Fecls and FlncIngs September 2015 75A -157 Statement of Facts and Findings emissions of greenhouse gases, Thus, these GHGs related impacts would be less than significant, and no mitigation measures are necessary. Hazards and Hazardous Materials A. Facts The project would not create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment. Construction activities would be implemented in compliance with the existing South Coast Air Quality Management District (SCAQMD), CaVOSHA, and the California Health and Safety Code requirements. These requirements were developed to protect human health and the environment from the hazards. Hence, compliance applicable regulations would reduce impacts related to the release of hazardous materials into the environment to a less- than — significant level. In addition, operation of the project would utilize common types of hazardous materials; normal routine use of these products pursuant to existing regulations would not result in a significant hazard to the public or to the environment. Impacts would be less than significant. 2. The project would not be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment. As described above, a perchlorate- impacted groundwater plume extends under the project site within a well - defined, relatively narrow area within the western portion of the site. Excavation activities for the project would not extend to the depth of the plume; thus, project activities would not encounter hazardous contamination that could present a potential health or safety risk, and impacts related to the existing groundwater contamination wound be less than significant. In addition, onsite soils have not been identified to contain any contaminants above the California Human Health Screening Levels developed by the Califori- a Environmental Protection Agency. Should contaminants be identified on site during construction, adherence to applicable regulatory DTSC, County of Orange Environmental Health Division, and the Orange County Fire Authority guidelines would ensure that impacts are less than significant. I The project would not create a significant safety hazard related to John Wayne Airport (JWA) operations to the people residing or worldng on the project site. JWA is located approximately 1.8 miles southwest of the project site; however, is not within JWA's Airport Safety Zone, the Ali-port Impact Zone, Runway Protection Zone, Obstruction of Imaginary Surfaces area, or the 65 CNEL Noise Contours. In addition, the proj ect would not result in 1k2zards related to excessive glare, light, steam, smoke, dust, or electronic interference. Thus, the project would not introduce a safety hazard associated with airport operations for people residing, working, and visiting the project site. Project - related impacts associated with JWA operations would be less than significant. 4. The project would not impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan. Direct access to the project site is provided from East Dyer Road and Red Hill Avenue, which are adjacent to the project site. Construction activities would not restrict access of emergency vehicles to the project site or adjacent areas from the The Heritage Mixed Use protect 12 J� USA 1140730 statement of Fscts and Findings September 2015 75A -158 statement of Facts and Findings existing project driveways. In addition, the project is required to design and construct internal access in conformance with Orange County Fire Authority standards and the California Fire Code regulations. As such, the project would not impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan, and impacts would be less than significant. The project would not result in cumulatively considerable impacts related to hazards and hazardous materials. Each past, present, and foreseeable future project must comply with all existing hazardous material regulations, which are in place to reduce the potential effects of accidental releases of hazardous materials. In addition, the project in combination with the cumulative development in the vicinity of JWA would not result in cumulatively considerable impact related to the safety of people residing or working in the proj cot area. The project would not introduce a safety hazard associated with airport operations, and would not contribute to cumulative impacts related to JWA hazards. Cumulative impacts would be less than significant, B. Findings The City finds that: The Heritage Mixed Use project would not result in a significant impact involving the release of hazardous materials into the environment. The project is also not located on a site that would create a significant hazard to the public or the environment. The project would not create a significant safety hazard related to JWA operations. The project would not impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan; and the project would not result in cumulatively considerable impacts related to hazards and hazardous materials. Thus, these hazards and hazardous materials related irnpacts would be less than significant, and no mitigation measures are necessary. Hydrology and Water Quality A. Facts 1. The project would not violate any water quality standards or waste discharge requirements during construction activities. Construction of the project would adhere to the Construction General Permit, which requires the development and implementation of a SWPPP by a. QSD to address site - specific conditions related to construction, and describe erosion and sediment control best management practices 03MPs) to reduce or eliminate sediment, pollutants adhering to sediment, and other non - sediment pollutants in storm water, as well as non -storm water discharges during construction. Adherence to the Construction General Permit would ensure that potential water quality degradation associated with construction activities would be minimized, and impacts would be less than significant. 2, Operation of the project would not violate any water quality standards or waste discharge requirements because the project would be required to comply with the Santa Ana RWQCB MS4 Permit that involves implementation of s, project- specific WQMP based on the County's model The Heritage Mixed Use Protect '13 ESA/ 140730 Slatement of Farts end Findings September 2015 75A -159 Statement of Facts and WQMP that would detail the appropriate non - structural, structural, and source control and treatment control BMPs implemented onsite and designed to protect surface water quality. Implementation of BMPs per the WQMP would reduce potential impacts to surface and ground water quality du ing project operation to a less than significant level. 3. The project would not substantially deplete groundwater supplies or interfexe substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level. Groundwater use and infiltration in the project area and vicinity is prohibited due to the existence of a subsurface plume identified by OCWD and above a natural pollutant source area (e.g., selenium). As such, the proj cot would not use groundwater resources or infiltrate water into the existing groundwater basin. In addition, constriction water uses, such as those associated with dust control and sanitation, are anticipated to be minimal; and the Water Supply Assessment (WS A) prepared for the project concluded that the project would result in a less than significant impact on water supplies. As such, the project would not substantially deplete groundwater supplies, and impacts would be less than significant. 4. The project would not substantially alter the existing drainage pattern of the site or area, including through the alteration of the coarse of a stream or river, in a manner which would result in substantial erosion or siltation on- or off site. The project would be required to be implemented in compliance with the Construction General Permit and a SWPPP prepared by a QSD and implemented by a Qualified SWPPP Practitioner (QSP), which would ensure that construction- related impacts from erosion and siltation from the project would be less than significant. After completion of construction, the runoff conditions (flow rates and durations) would be less than pre - development runoff conditions. Thus, the project would not result in erosion or siltation onsite or offsite. Impacts would be less than significant. 5. The project would not 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 mamier which would result in flooding onsite or offsite. There are no streams or rivers in the vicinity of the project site; thus, alteration of the course of a stream or river would not occur. In addition, the SWPPP would ensure that construction - related impacts related to increases to surface runoff would be less than significant. After completion of construction, the runoff conditions (flow rates and durations) would be toss than pre - development runoff conditions. Thus, the project would not result in runoff that could substantially alter the existing drainage pattern of the site or area. Impacts would be less than significant. The project would not create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff. The SWPPP would ensure that construction - related impacts related to sources of polluted runoff would be less than significant. Auer completion of construction, the runoff conditions (flow rates and durations) would be less than pre - development runoff conditions due to the increase in pervious surfaces that would be generated from the project. In addition, runoff would be filtered through structural BMPs, which would slow drainage and remove pollutants, prior to discharge from the project site. Thus, the project would not result in runoff that would exceed the capacity of existing The Iderkage Mixad Use Preect 14 Statement rf Facts and Findings 75A -160 ESA 1140734 September 2015 Statement of or planned storuawater drainage systems or provide substantial additional sources of polluted runoff. Impacts would be less than significant. The project would not substantially degrade water quality. The proj act would be required to comply with the Construction General Pernnit and implement a QSD prepared and QSP implemented SWPPP that identifies which BMPs would be implemented during construction in order to protect water quality. In addition, structural and non - structural BMPS would be implemented as part of the project, which would both reduce runoff and remove pollutants from drainage prior to discharge from the project site. As a result, impacts related to the degradation of water quality would be less than significant, 8. The project and all reasonably foreseeable future projects in the subwatershed would be required to implement measures that are similar as the project to implement compliance with the MS4 Permit and Model WQMP requirements, These requirements were developed to reduce the cumulative impacts to water quality, and to ensure that the incremental effects of individual projects do not cause a substantial cumulative impact related to water quality, erosion, flooding, and drainage. The project would result in increased pervious surfaces and would filter drainage prior to discharge. This would have a positive impact on water quality and hydrology compared to existing conditions. Thus, the project would not result in impacts that could combine to be adversely cumulatively considerable, and cumulative hnpacts are less than significant. B. Findings The City finds that; The Heritage Mixed Use project would not result in a significant impact involving violation of water quality standards or waste discharge requirements, The proj cot would not substantially deplete groundwater supplies or interfere substantially with groundwater recharge, nor substantially alter the existing drainage pattern of the site or area. Additionally, the proj cot would not create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff that would degrade water quality. Furthermore, the project would not result in impacts that could combine to be adversely cumulatively considerable. Thus, these hydrology and water quality related impacts would be less than significant, and no mitigation measures are necessary. Land Use and Planning A. Facts 1. The project would not conflict with any City of Santa Ana General Plan policies, Zoning Ordinance regulations, SCAG 2012r -2035 RTP /SCS goals, and the SLAG Compass Blueprint principles that were adopted for the purpose of avoiding or mitigating an environmental effect. 2. The project would not result in cumulatively considerable impacts related to regulations related to mitigating an environmental effect, In addition, the related projects generally provide mixed uses, which are similar and consistent to those provided by the project. Asa result, adverse interactive The Heritage Mixed Use Project 15 ESA/ 140730 Statement of Facts and Findings September 2015 75A -161 Statement of Facts and Findings effects from cumulative land uses would not occur. Cumulative impacts related to land use and planning would be less than significant. B. Findings The City finds that: The Heritage Mixed Use project would not result in a significant impact involving conflict with any applicable policy or regulation adopted for the purpose of avoiding or mitigating an environmental effect. Thus, these land use and planning related impacts would be less than significant, and no mitigation measures are necessary. Noise A. Facts 1. The project would not result in exposure of persons to, or generation of, noise levels in excess of standards established in the City's General Plan or noise ordinance. Construction related noise levels would fluctuate depending on the particular type, number, and duration of uses of various pieces of construction equipment. Project constriction would require the use of heavy construction equipment and small power tools, generators, slid other sources of noise, Noise levels at sensitive receptors during construction would vary based on the amount of equipment in operation and the location of the activity. The City's Municipal Code exempts construction noise from the City's established noise standards as long as they do not take place between the hours of 8:00 pm and 7:00 am on weekdays, including Saturday, or any time on Sunday or a federal holiday. As the project's construction activities would only occur during the allowable constntction hours, the project would be in compliance with the City's applicable standards and impacts would be less than significant. 2. The project includes development and use of exterior parking facilities, which would generate noise from engines accelerating, doors slamming, car alarms, and people talking. Noise from tine parking facilities would fluctuate throughout the day, with the highest in the peak morning and evening hours when the largest volume of people would enter and exit the parking facilities. The parking noise is typical of residential uses and would not exceed the City's noise standards, and noise impacts would be less than significant. 3. The project would provide open space and recreational facilities onsite. The operational noise levels associated with the project's outdoor gathering areas would not cause a substantial increase in the existing exterior noise levels and would not exceed the City's noise standards. Therefore, the operational noise generated by the proj ect at outdoor gathering areas would be less than significant. d. To ensure the City's standards related to noise volumes at residential, park, and open space areas, are met, the proj act would shield residential open space and recreation uses from the traffic noise generated on Dyer Road and Red Hill Avenue by the location and design of the mixed -use The Heritage Mixed Use Project 16 Slatement of Facts and Findings 75A -162 ESA 1140730 September 2015 buildings and parking structures. The project design would provide that noise levels at common areas would not exceed the City's 65 dBA CNEL noise standard, and impacts would be less than significant. The project site is adj acent to a rail line that is used by switchers. This distance between the rail line and the sensitive onsite uses is 57 feet and would result in noise at the onsite sensitive uses that is less than the City's 65 dBA noise standard. Additionally, the existing noise level in the project area exceeds the noise generated by the switcher train movements, and impacts would be less than significant. 6. Construction of the project would not result in exposure of persons to, or generation of, excessive ground -borne vibration or ground- borrnc noise levels. Construction activities would generate PPV groundborne vibration levels that are less than the threshold for building damage; and impacts would be less than significant. Additionally, based on Caltrans criteria for human annoyance the vibration levels experienced at adjacent uses would be distinctly perceptible. However, the project's construction activities would be temporary and only occur in accordance with the City's municipal code. Thus, vibration impacts associated with human annoyance would be less than significant. 7. Operation of the proj cot would not result in exposure of persons to, or generation of, excessive ground -borne vibration or ground -borne noise levels. The proposed types of land uses (i.e., residential, commercial, office, open space /par ks) would not involve activities or operation of stationary or mobile equipment that would result in high vibration levels. In addition, the existing BNSP rail line located 57 feet to the west of the site. However, the vibration levels resulting from use of the rail line are less than the vibration criteria for building damage and human annoyance. Therefore, operational impacts related to vibration would be less than significant. 8. The project would not result in a substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project. The vehicular noise generated from the project would result in a minimal increase local noise levels that would not be perceptible and would not exceed the threshold of significance. Therefore, impacts would be less than significant. The project would not result in exposure of people residing or working in the area to excessive noise levels from operation of J WA, which is located approximately 1.8 miles southwest of the proj cot site. The western portion of the proj cot site is located within the airport's 60 dBA CNEL noise contour while the remainder of the site is located outside the 60 dBA CNEL noise contour. The City's residential noise standards state that residential uses have an exterior noise standard of 65 dBA CNEL; thus, because the entire proj cot site is located outside of the 65 dB CNEL noise contour, the proj cot would not expose people to excessive noise from JWA 10. The project would not result in cumulatively considerable impacts related to construction noise and vibration. Construction noise and vibration is localized in nature and decreases substantially with distance, Due to this distance and intervening structures located between the project site and nearby foreseeable projects, a substantial increase in combined construction noise and vibration levels would not occur should construction of this related proj cot occur at the same time as the Th. I her logo Wed Use Project 17 E3AI 140730 statement of Fects and Pindtngs September 2015 75A -163 Statement of f=acts and project. Therefore, cumulative noise and vibration impacts associated with construction activities would be less than significant. 1.1. Cumulative traffic- generated noise from the proj act would be minimal and would not exceed the significant thresholds; therefore, cumulative impacts from traffic noise would be less than significant, B. Findings The City finds that: The Heritage Mixed Use project would not result in exposure of persons to, or generation of noise levels in excess of standards established in the City's General Plan or noise ordinance. Vibration impacts from construction and operation of the proj cot would not exceed criteria for building damage or human annoyance, and impacts would be less than significant. The project would also not result in a substantial permanent increase in ambient noise levels. In addition, the project would not result in exposure of people residing or working in the area to excessive noise levels from operation of JWA. Furthermore, cumulative noise impacts related to construction and operation of the project would be less than significant and no mitigation measures are necessary. Population and Dousing A. Pacts 1, The project would not induce substantial population growth in an area, either directly or indirectly. Construction of the project would not generate a need for construction workers to relocate to work on the project and result in a population increase. As a result, temporary impacts related to construction employment would be less than significant. The increase in population and housing units generated by the project would be well within the projected growth in the combined three City area and the County. In addition, the project is consistent with nearby land use trends that have redeveloped nonresidential uses to high - density, urban -style residential/mixed-use development sites. The project is in response to, and similar to, land use trends in the project vicinity and would not induce substantial population growth in the area. Impacts would be, less than significant. 2, The existing jobs- housing ratio in Santa Ana, Tustin., and Irvine area show that there are more jobs than housing units. The project would provide housing units that result in a slight reduction of the jobs - housing ratio. This would be a beneficial impact of providing housing units on the project site, where employees can easily travel to employment opportunities within Santa Ana, Tustin and Irvine. 3. Water and wastewater services would be provided by connections to the existing infrastructure within Dyer Road and Red Hill Avenue. Infrastructure would not be extended to serve areas beyond the project site, and the project would not result in the provision new service or an increase in the capacity of service to areas beyond the project site, The project would not result in indirect inducement of population growth that would have the potential to create a significant physical The Heriage Mixed W. Project 18 ESA/ 7907n Statement of Facts snd Findings 8oplember 2013 75A -164 Statement of Facts and Findings change to the environment. As a result, impacts related to population growth are less than significant. 4. The cumulative growth within the Santa Ana, Tustin, and Irvine area would not combine to result in a cumulatively considerable adverse impact. Conversely, the cumulative addition of residential units within the project vicinity would result in a cumulative benefit to the j obs- housing balance for this region of Orange County, and could reduce physical impacts related to the jobs - housing balance, such as regional traffic, air quality emissions, and greenhouse gasses; as a result impacts are less than significant. Additionally, infrastructure upgrades and extensions that may be included in related projects would not affect or be related to the project. Therefore, the project and other projects in the area, when considered cumulatively, would not directly or indirectly induce substantial growth. Impacts are less than cumulatively considerable, and less than significant. B. Findings The City finds that: The Heritage Mixed Use proj cot would not result in a in a significant impact involving population growth in an area, either directly or indirectly. The project would provide housing units that result in a slight reduction of the jobs - housing ratio, which would be a beneficial impact of the project. In addition, cumulative addition of residential units within the project vicinity would result in a cumulative benefit to the jobs- housing balance for this region of Orange County, and could reduce physical impacts related to the jobs - housing balance. Thus, these population and housing related impacts would be less than significant, and no mitigation measures are necessary. Public Services A. Facts 1, The project would not result in substantial adverse physical impacts associated with the provision of, or the need for, new or physically altered governmental facilities, the constriction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response tunes, or other performance objectives for: Fire protection: There are four existing Orange County Fire Authority (OCFA) stations within three miles of the project site, and the existing response time to emergency calls to the project site is less than five minutes. The existing fire protection facilities and staffing would be sufficient to provide fire protection and emergency medical services to the project, and project development would not require the OCFA to construct new or expanded facilities. Thus, impacts would be less than significant, • Police protection: The Santa Ana Police Department would experience an incremental increase in demands on law enforcement services from the project, but the increase would not be significant when compared to the ciurent demand levels. Law enforcement personnel would be able to respond in a timely manner to emergency calls hr the project area; the project is not anticipated to result in an increase to response times to service calls; and the The Herltage Mixed Use Project 19 ESA MOM $tatemenl of Facts and Findings September 2015 75A -165 project would not result in the need fox, new or physically altered police protection facilities. Thus, impacts are less than significant. • Schools: The project would develop residential units, which would house school children. The need for additional school facilities is addressed through compliance with school impact fee assessment. Pursuant to Government Code Section 65995 applicants shall pay developer fees, which provides full and complete mitigation of school impacts. As a result impacts related to school facilities would be less than significant. • Libraries: Due to the increase in residential population that would result from the project, the Santa Ana library would need approximately 3,665 book volumes and 488.6 square feet of library space. This limited increase would not require the City to construct new or expanded library facilities. Thus, impacts would be less than significant. 2. The project would not result in cumulatively considerable impacts related to public services. Consistent with the requirements of the project, the related projects would be reviewed by OCFA staff prior to permit approval and would be required to implement fire protection design features per OCFA regulations that would reduce potential fire hazards to a less than significant level. In regards to police protection services, the project would not combine with other related projects to result in a need to expand or provide new police facilities, which could result in a significant environmental effect. Therefore, cumulative impacts associated with police services would be less than significant. In regards to school services, payment of development impact fees to school districts constitutes full mitigation for the impacts generated by new development, per the Government Code Section, which would reduce potential impacts related to the projects cumulative school service impacts to a less than significant level. Furthermore, development of the project in combination with other residential developments would increase the demand for library services. However, based on the limited increased need to book volumes and library square footage, the project is not anticipated to combine with other projects in the City to result in the need to physically expand facilities. Thus, no significant cumulative impacts on library services are anticipated. B. Findings The City finds that: The Heritage Mixed Use project would not result in a in a significant impact involving the need for new or physically altered fire, police, school, or library facilities; the constriction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times, or other performance objectives. Thus, public service related impacts would be less than significant, and no mitigation measures are necessary. Parks and Recreation A. Facts 1. The project would not result in substantial adverse physical impacts associated with the provision of, or the need for, new or physically altered park facilities. The project would provide The Heritage Mixed Use project 20 Sletement of Faola and Flndings 75A -166 ESA J 14073 September 2015 approximately 173,907 square feet of public open space and recreation, and approximately 138,849 square feet of private open space for residents use, which when combined with the public open space would provide 315,756 square feet (7.25 acres) of open space and recreation amenities that would meet the City's requirements related to park and recreation standards and is anticipated to meet the needs of the project's onsite population. The project would meet the City's requirements related to park and recreation standards, which would offset increased usage of other park and recreation facilities in the region. Therefore, the project would not result in a substantial need for new or physically altered park facilities, and impacts would be less than significant. 2. The project would not increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facilities would occur or be accelerated. The facilities that would be provided as part of the project exceed the requirements of the City's Municipal Code and would serve both the public and onsite residents. 'This would offset increased usage of other park and recreation facilities in the region, such that a limited increased usage at other park and recreation facilities in the region is antioipated to occur. Thus, impacts would be less than significant. 3. The project would meet the City's requirements related to park and recreation standards, which would help to offset increased usage of other park and recreation facilities in the region, and the project would not contribute to a cumulatively considerable effect. Thus, impacts cumulative impacts related to parks and recreation would be less than significant. B. Findings The City finds that: The Heritage Mixed Use project would not result in a in a significant impact involving the need for new or physically altered park facilities or physical deterioration of existing neighborhood and regional parks and recreation facilities. The proj eat would exceed the City's requirements related to park and recreation standards, which would offset increased usage of other park and recreation facilities in the region, and the project would not contribute to a cumulatively considerable effect. Thus, park and recreationrelated impacts would be less than significant, and no mitigation measures are necessary. Transportation and Traffic A. Facts The project would not result in conflict with an applicable Congestion Management Program (CMP), including, but not limited to, level of service standards and travel demand measures, or other standards established by the county congestion management agency for designated roads or highways. Implementation of the project would not result in a significant impact at CMP intersections. The CMP intersections would operate at an acceptable LOS in through year 2035 cumulative plus proj act conditions, Therefore, the project would result in less than significant impacts related to conflict with an applicable CMR The Heritage Wxed Use Project 21 ESA 1140730 Statement of Facle and rindingn September 2015 75A -167 Statement of Facts and Findings 2. The project would not result in in increase in hazards due to a design feature, Vehicular access to the project site would be provided by two right -turn in / right -turn out only driveways on Dyer Road and via one right -turn in / right - turn out only driveway on Red Hill Avenue. All three project driveways would not exceed the safety criteria and thresholds of significance, and motorists entering and exiting the project site would be able to do so comfortably, safely, and without undue congestion. In addition, the project's on -site circulation layout provides adequate vehicle and truck accessibility throughout the project site. Impacts related to hazards related to design features would be less than significant. B. Findings The City finds that: The Heritage Mixed Use project would not result in a in a significant impact involving the CMP or hazards related to design features. The CMP intersections world operate at an acceptable LOS in through year 2035 cnunulative plus project conditions; and the project design does not result in hazardous conditions. Therefore, the project would result in less than significant impacts related to conflict with an applicable CMP and hazards related to a design feature and no mitigation measures are necessary. Utilities and Service Systems A. Facts 1. The project would not result in conflict with wastewater treatment requirements of the applicable RWQCB. The residential and commercial land uses proposed by the project would not discharge wastewater that contains harmful levels of toxins that are regulated by the RWQCB (such as large quantities of pesticides, herbicides, oil, grease, and other chemicals that are more typical in industrial uses) and all effluent would comply with the wastewater treatment standards of the RWQCB. Therefore, the project would result in less than significant impacts related to the wastewater treatment requirements of the RWQCB. 1 The proj ect includes construction of the onsite public water main and distribution lines to support the new development; however, no extensions or expansions to the water pipelines supplying the project site would be required. Therefore, the project would not result in the construction of new water facilities or expansion of existing facilities, other than those included as part of the project, that could result in significant environmental effects. 3. The project would install new onsite sewer pipelines that would collect and convey wastewater to the existing sewer main in Dyer Road. In addition, the project would replace the existing 10 -inch sewer with a 12 -inch sewer within 1,000 feet of the Dyer Road right -of -way, however, no extensions or expansions to the wastewater infrastructure would result or be required. Therefore, the project would not result in the construction of new wastewater facilities or expansion of existing facilities, other than those included as part of the project, which could result in significant environmental effects. 4. The project would not require or result in the construction of new storm water drainage facilities, or expansion of existing facilities, the constructions of which could cause significant environmental effects. The herlfega Mixed Use Protect 22 ESA! 140730 Statement of Feats and Flndings September 2015 75A -168 Statement of Facts and Findings Operation of the project would result in runoff conditions (flow rates and durations) that would be less than pre - development nmoff conditions due to the increase in pervious surfaces. In addition, runoff would be filtered through structural BMPs, which would slow drainage, prior to discharge from the project site. Thus, the prof cot would not result in rLmoff that would exceed the capacity of the stormwater drainage systems. Impacts would be less than significant. 5. The project would have sufficient water supplies available to serve the project from existing entitlements and resources. The Water Supply Assessment (WSA) prepared for the project concluded that the proj cot would result in a less than significant impact on water supplies. As such, the project would have sufficient water supplies, and impacts would be less than significant. 6. The wastewater treatment provider that would serve the project has adequate capacity to serve the proj ect's projected demand in addition to the provider's existing commitments. OCSD has stated that the existing 39 -inch trunk sewer in Red Hill Avenue that serves the proj cot site has sufficient capacity for the project effluent, and no upgrades downstream of the project site would be required. In addition, the project would be accommodated within the existing capacity of the treatment plant. Therefore, the project would not result in capacity impacts to OCSD, and impacts related to the provision of wastewater treatment in addition to OCSD's existing commitments would be less than significant, 7. The project would be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs. The solid waste needs of the project would be met with permitted disposal facilities that are provided by Orange County Waste and Recycling (OCWR). Thus, impacts related to solid waste facility capacity would be less than significant. 8. In regards to the cumulative utility and service impacts that would occur from the proj cat in combination with other existing, proposed, and foreseeable projects, the WSA determined that the City would have sufficient water supply to serve the project and the anticipated growth in the City's service area through the year 2035. As a result, the prof ect would not result in a cumulatively considerable impact related to water supplies or services. Shnilarly, the cumulative increase in the need for wastewater service would be less than cumulatively considerable in relation to the existing remaining capacity of 50 million gallons per day at treatment plant that would serve the project site. In regards to drainage, the project would result in increased pervious surfaces and would filter drainage prior to discharge that would reduce offsite flows to drainage facilities; thus, the project world not cumulatively contribute to stormwater drainage needs. In addition, OCWR prepares long -range strategic planning to ensure that solid waste is safely disposed of and that future disposal needs are met. Thus, impacts related to landfills would not be cumulative considerable, and cumulative impacts related to landfills would be less than significant. B. Findings The City finds that: The Heritage Mixed Use project would not result in a significant impaol: to the environment involving conflict with wastewater treatment requirements of the RWQCB, water supplies, stormwater drainage The Heritage Mixed Use Project 23 ESA/ 140730 Statement of Faots and Findings September 2015 75A -169 Statement of infrastructure, water and wastewater, and landfill facility and service capacity. Utility and service system related impacts would be less than significant, and no mitigation measures are necessary. 6.0 Effects Determined to be Mitigated to Less than Significant in the EIR The City of Santa Ana, having reviewed and considered the information contained in the Final EIR, the Technical Appendices, and the administrative record, finds, pursuant to California Public Resources Code 21081 (a)(1) and CEQA Guidelines 15091 (a)(1) that changes or alterations have been required in, or incorporated into, the project, which would avoid or substantially lessen to below a level of significance the following potentially significant environmental cffects identified in the Final EIR in the following categories: • Air Quality (short -term [construction] air emissions) • Cultural Resources (archaeological and paleontological resources, cumulative) • Geology and Soils (seismic ground shaking, liquefaction, ground settlement, corrosive soils, expansive soils) • Greenhouse Gases (operations) • Land Use and Plarr ing (airport consistency) • Noise (project machinery noise and short -term construction noise) The potentially significant adverse environmental impacts that can be mitigated are described below. The City of Santa Ana finds that these potentially significant adverse impacts can be mitigated to a level that is less than significant after implementation of mitigation measures. e O . H A. Facts The project has the potential to violate any air quality standard or contribute substantially to an existing or projected air quality violation during construction activities. Construction related emissions would have the potential to result in substantial contributions concentrations of ROG and NOx. NOx would be generated from the onsite equipment exhaust, and ROGs would be generated from the application of architectural coatings. Implementation of Mitigation Measures AQ -1 through AQ -6 would reduce the emissions through regulating equipment exhaust, extending the timing of the architectural coating phases, and reducing the ROG content of the architectural coatings used for non - residential buildings to those required for residential buildings. The total mitigated ROG and NOx emissions that would result from the implementation of mitigation would be reduced to less than significant levels. Therefore, emissions from construction activities would be less than significant with implementation of the mitigation measures listed below. The Harltage Mlxed flee Projort 24 Statement of Facts and Findings 75A -170 ESA /140730 September 2016 B. Findings The City finds that: The mitigation measures listed below have been required for, and incorporated into the project, to ensure that the project's potential construction related air quality impacts remain less than significant. Mitigation Measures Mitigation Measure AQ -1: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Grading Plan, Building Plans, and specifications stipulate that, the construction contractor shall implement a minimum of one of the following: 1. All off-road equipment with a horsepower greater than SO shall be required to have USEPA certified Tier 4 interim engines or engines that are certified to meet or exceed the NOx emission ratings for USEPA Tier 4 engines. Any emissions control device used by the contractor shall achieve emissions reductions that are no less than what could be achieved by a Level 4 diesel emissions control strategy for a similarly sized engine, as defined by CARB regulations. 2. Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the construction plans and specifications stipulate that Building and Construction Phases shall not overlap with Grading Phases. These activities shall be verified by the Building Safety Division thuing constriction. Mitigation Measure AQ -2: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Grading Plan, Building Plans, and specifications stipulate that, in compliance with SCAQMD Rule 403, 03 precursor emissions from construction equipment vehicles shall be controlled by maintaining equipment engines in good condition and in proper tune per manufacturer's specifications, to the satisfaction of the City Engineer. Maintenance records shall be provided to the City by the construction contractor on a monthly basis. Construction contractors shall also ensure that all nonessential idling of construction equipment is restricted to five minutes or less in compliance with California Air Resources Board's Rule 2449. The City Inspector shall be responsible for ensuring that contractors comply with these measures during construction. Mitigation Measure AQ -3: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Grading Plan, Building Plans, and specifications stipulate that, in compliance with SCAQMD Rule 403, excessive fugitive dust emissions shall be controlled by regular watering or other dust prevention measures, as specified in the SCAQMD's Rules and Regulations. In addition, SCAQMD Rule 402 requires implementation of dust suppression techniques to prevent fugitive dust from creating a nuisance off -site. Implementation of the following measures would reduce short-tenn fugitive dust impacts on nearby sensitive receptors: • All active portions of the constriction site shall be watered every three hours during daily construction activities and when dust is observed migrating from the proj Oct site to prevent excessive amounts of dust. The Uadlege Mixed Use praJect 25 [SA/ 140730 Statement of Facts end Findings September 2015 75A -171 Statement of Facts and • Pave or apply water every three hours during daily construction activities or apply non -toxic soil stabilizers on all unpaved access roads, parking areas, and staging areas. More frequent watering shall occur if dust is observed migrating from the site during site disturbance. • Any on -site stockpiles of debris, dirt, or other dusty material shall be enclosed, covered, or watered twice daily, or nontoxic soil binders shall be applied. • All grading and excavation operations shall be suspended when wind speeds exceed 25 miles per hour. • Disturbed areas shall be replaced with ground cover or paved immediately after construction is completed in the affected area. • Track-out devices such as gravel bed track -out aprons (3 inches deep, 25 feet long, 12 feet wide per lane and edged by rock berm or row of stakes) shall be installed to reduce mud /dirt track -out from unpaved truck exit routes. Alternatively a wheel washer shall be used at tnick exit routes. • On -site vehicle speed shall be limited to 15 miles per hour. • All material transported off-site shall be either sufficiently watered or securely covered to prevent excessive amounts of dust prior to departing the job site. • Reroute construction trucks away from congested streets or sensitive receptor areas. Mitigation Measure AQ -4: All trucks that are to haul excavated or graded material on -site shall comply with State Vehicle Code Section 23114 (Spilling Loads on Highways), with special attention to Sections 23114(b)(F), (e)(4) as amended, regarding the prevention of such naterial spilling onto public streets and roads. Prior to the issuance of grading permits, the Applicant shall demonstrate to the City Engineer how the project operations subject to that specification during hauling activities shall comply with the provisions set forth in Sections 23114(b)(F)(e)(4). Mitigation Measure AQ -5: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that. the construction plans and specifications stipulate that the architectural coatings activities required for project construction be extended to a minimum of 100 days. The duration of architectural coatings activities shall be verified by the Building Safety Division during construction. Mitigation Measure AQ -6: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the construction plans and specifications stipulate that All architectural coatings for non - residential as well as residential buildings shall meet a volatile organic compound (VOC) content of 50 grams per liter (g/L) or less for interior coating and 100 g/L or less for exterior coatings; or a content consistent with Rule 1113 (i.e., super compliant paints), Use of low -VOC paints shall be verified by the Building Safety Division during construction. Cultural Resources A. Facts 1. The project has the potential to cause a substumtial adverse change in the significance of a historical or archaeological resource, as defined in CEQA aildelines Section 15064.5. Excavation for the proj ect'is anticipated to extend to a depth below the level of the previous soil disturbance activities. The Heritage Mixed Use Project 26 Stetemant of Facts and Flndinge 75A -172 ESA/14073D September 2015 Statement of Facts and Findings In addition, there are a number of prehistoric and historic -period archaeological resources recorded in the project vicinity. Hence, it is possible that subsurface earthwork activities could encounter previously undiscovered archaeological resources. Mitigation Measures CUL -1 and CUL -2 are provided to protect archaeological materials if any are encountered during the course of grading or construction of the project. Implementation of cultural resource Mitigation Measures CUL -1 and CUL -2 would reduce potential impacts to archaeological resources to a less than significant level. 2. The project has the potential to directly or indirectly destroy a unique paleontological resource or site or unique geologic feature. The project site may be underlain by areas of alder Quaternary Alluvium deposits that are known to contain vertebrate fossils, and fossils in older Quaternary Alluvium deposits have been found five miles southwest of the site project site and elsewhere on the Tustin Plain. Thus, the Los Angeles County Natural History Museum considers the project area to have a moderate paleontological sensitivity. Excavations exceeding a depth of ten feet into older Quaternary Alluvium sediments may uncover fossils and result in impacts to paleontological resources. Therefore, Mitigation Measures CUL -2 and CUL -3 have been included to reduce this potential impact to a less than significant level, 3. Due to identified resources in the proj cot vicinity, previously unknown and unrecorded resources could exist within the project site and could be unearthed during excavation activities of both the proposed project and cumulative projects in the area. As a result, Mitigation Measures CUL -I through CUL -3 have been included to ensure that potential resources would not be impacted. With implementation of the mitigation, the project would not result in impacts that could combine with other existing, future, or foreseeable projects. B. Findings The City finds that: The mitigation measures listed below have been required for, and incorporated into the proj act, to ensure that the project's potential construction related air quality impacts remain less than significant. Mitigation Measures Mitigation Measure CUL -1; Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Building Plans and specifications stipulate that the project operator shall retain a qualified archaeologist and paleontologist, defined as an archaeologist meeting the Secretary of the Lnterior's Standards for professional archaeology (US, Department of the Interior, 2015) and defined as a paleontologist meeting the Society of Vertebrate Paleontology standards (SVP, 2015), who shall conduct a Cultural Resources Sensitivity Training for all construction personnel prior to the start of any ground disturbing activities. The training shall include an overview of potential cultural resources that could be encountered during ground disturbing activities to facilitate worker recognition, avoidance, and subsequent immediate notification to the qualified archaeologist for further evaluation and action, The Heritage Mixed Use Project 27 ESA 1140730 statement of rams end Findings September 2015 75A -173 as appropriate; and penalties for unauthorized artifact collecting or intentional disturbance of archaeological resources. Mitigation Measure CUT, -2: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shah confirm that the Building Plans and specifications stipulate that in the event archaeological and /or paleontological materials are encountered dining the course of grading or constriction, the project contractor shall cease any ground disturbing activities within 50 feet of the find, The qualified archaeologist and/or paleontologist shall be immediately notified to evaluate the significance of the resources and recommend appropriate treatment measures. Per California Environmental Quality Act Guidelines Section 15126.4(b)(3), project redesign and preservation in place shall be the preferred means to avoid impacts to significant historical resources. Consistent with California Environmental Quality Act Guidelines Section 15126,4(b)(3)(C), if it is demonstrated that resources cannot be avoided, the qualified archaeologist shall develop additional treatment measures in consultation with the City, which may include data recovery or other appropriate measures. The City shall consult with appropriate Native American representatives in determining appropriate treatment for unearthed cultural resources if the resources are prehistoric or Native American in nature, Archaeological and/or paleontological materials recovered during any investigation shall be curated at an accredited curational facility, The qualified archaeologist and/or paleontologist (depending on the type of resource identified) shall prepare a report documenting evaluation and/or additional treatment of the resource. A copy of the report shall be provided to the City and to the South Central Coastal Information Center and /or Natural History Museum of Los Angeles County depending on the type of resource identified. Mitigation Measure CUL -3: If excavations in excess of ten feet below ground surface are required, written evidence shall be provided to the City's Planning and Building Agency prior to receipt of any grading /excavation permits that a qualified paleontologist pursuant to the standards of the Society of Vertebrate Paleontology (S VP) has been retained to review all geotechnical investigations and City approved construction design plans for the proposed proj ect, Based on geotechnical findings and the constriction design plans, the qualified paleontologist shall determine an appropriate monitoring plan for excavation of areas in excess of ten feet below ground surface. The monitoring plan shall include procedures for paleontological resources surveillance, and procedures for temporarily halting or redirecting work to permit the sampling, identification, and evaluation of the fossils as appropriate. If evidence of subsurface paleontological resources is found during excavation, all construction activity in the area shall cease and the construction contractor shall immediately contact the qualified monitoring paleontologist and the City of Santa Ana Executive Director of the Plamrnig and Building Agency. The qualified paleontologist shall evaluate the find; and if warranted, shall prepare and complete a standard Paleontological Resources Mitigation Program for the salvage and curation of identified resources. The Heritage Mixed Use Nojacl 28 5tatament of Facts and Findings 75A -174 ESA 1140130 September 2015 Statement of Facts and Findings Geology and Soils A. Facts The project has the potential to result in exposure people or structure to potential substantial adverse effects, including the risk of loss, injury or death involving strong seismic ground shaking because the prej ect would add residents, employees, and development to the project site. Southern California is a seismically active region, with numerous faults capable of producing significant ground motions. As a result, development, including the project, is required to adhere to the provisions of the CBC, which are reviewed by the City for appropriate inclusion, as part of the building plan check and development review process. Compliance with the requirements of the CBC for structural safety reduces hazards from strong seismic ground shaking. In addition, Mitigation Measure GEO -1 is provided to reduce potential seismic impacts by requiring preparation of a design level geotechnical report to provide specific construction and design requirements and requiring that all grading and foundation construction activities be monitored by the geotechnical engineer of record. Implementation of Mitigation Measure GEO -1 would reduce potential impacts related to seismic ground shaking to a less than significant level. The project has the potential to result in exposure people or structure to potential substantial adverse effects, including the risk of loss, injury or death involving seismic - related ground failure, including liquefaction. Potentially liquefiable soils have been identified at depths of 8 to 12 feet which have a total dynamic liquefaction induced settlement of 1.1 inches, which is considered to be within the structural tolerances of typical buildings. In addition, the alluvium soils onsite are compressible and would settle due to the anticipated loads of the proposed structures. Mitigation Measure GEO -1 requires a design level geoteclmical report to provide specific construction and design requirements related to the potential of seismic - related ground failure. Implementation of Mitigation Measure GEO -1 would reduce potential impacts related to seismic ground shaking to a less than significant level. The onsite soils possess severe concentrations of soluble sulfates as defined by the American Concrete Institute Publication 318 -05 Building Code Requirements for Structural Concrete and Commentary. Therefore, the Geotechnical Feasibility Study recommends specialized sulfate resistant concrete mix designs that would be requires as part of Mitigation Measure GEO -1, which would reduce potential impacts related to corrosivity of soils to a less than significant level. 4. The near - surface soils on the project site possess a low to medium expansion potential. As a result, Mitigation Measure GEO -1 requires site - specific design level subsurface exploration, laboratory testing, and engineering analysis to provide specific design and construction requirements pursuant to the CBC, which would reduce the potential related to the potential expansion of onsite soils to a less than significant level. The Harhage Wad Use ProJect 29 CSA / 140730 Sfalomenl of Facts and Findings Soplember 20'15 75A -175 B. Findings The City finds that: The mitigation measure listed below has been required for, and incorporated into the project, to ensure that the project's potential impacts related to geology and soils remain less than significant. Mitigation Measure Mitigation Measure GEO -1: Prior to the issuance of grading permits, the applicant shall submit a design level geotechnical report prepared by a qualified geotechnical engineer to the City of Santa Ana Planning and Building Agency and Public Works Division for review and approval. The recommendations provided in the Geotechnical Feasibility Study (Appendix C of the Draft EIR), would be incorporated into the design level geotechnical report as requirements. The design level geotechnical report shall be prepared by a qualified geotechnical engineer. The document shall include the subsurface exploration, laboratory testing and engineering analysis necessary to provide specific foundation, floor slab, and grading recommendations fully compliant with the California Building Code and City of Santa Ana Municipal Code. All grading and construction onsite shall adhere to the specifications, procedures, and site conditions contained in the final design plans, which shall be fully compliant with the California Building Code. Additionally, the grading and foundation construction activities shall be monitored by the qualified geotechnical engineer of record. Construction of the final structural design shall be monitored through follow -up inspection by the City of Santa Ana Plannning and Building Agency. Greenhouse Gas Emissions A. Facts 1. Operation of the project has the potential to result in greenhouse gas emissions that may have a significant impact on the environment. The new residential and non - residential uses at the project site would generate mobile source emissions vehicle trips generated by residents, employees, and patrons. In addition, greenhouse gas emissions result from electricity and natural gas consumption, water transport (the energy used to pump water to and from the project site), and solid waste disposal. Implementation of Mitigation Measures AQ -7 through AQ -13 would reduce the project's operational GHG emissions by increasing the energy efficiency of the proposed buildings to five percent beyond that required by 2013 Title 24 standards, equipping three percent of parking spaces with charging stations, not including fireplaces within residential units, requiring the use of low VOC products, provision of outlets for landscaping equipment and requiring 10 percent of landscaping be completed with electric equipment, and provision of information regarding nearby transit services. The net increase in GHG emissions resulting from operation of the project would be less than significant with implementation of Mitigation Measures AQ -7 through AQ -13. 2, The project has the potential to conflict with the City's adopted emission reduction target for 2020 that is 15 percent below 2008 levels, which is consistent with the AB 32 reduction goals. Implementation of Mitigation Measures AQ -7 through AQ -13 would reduce greenhouse gas The harltaye Mixed Use Prefect 30 Slaternent of Facts and FIndings 75A -176 ESA 1140730 September 2015 and emissions from the project and would meet the SCAQMD's emission thresholds, and be consistent with both AB 32 and the City's adopted reduction target. B. Findings The City fords that: The mitigation measures listed below have been required for, and incorporated into the project, to ensure that the project's potential impacts related to greenhouse gas emissions remain less than significant. Mitigation Measures Mitigation Measure AQ -7: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Building Plans and specifications stipulate that all onsite buildings shall increase energy efficiencies to five percent (5 %) beyond that required by 2013 Title 24 standards. This may be achieved through, but is not limited to, building shell design and building components such as windows, roof systems, wateThrrigation, and electrical systems. Mitigation Measure AQ -8: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Building Plans and specifications stipulate that three percent (3 %) (or the amount required by the CalGreen Code, whichever is greater) of all off- street parking spaces shall be equipped with charging stations to encourage the use of electric vehicles. The charging stations shall be installed within each residential parking structure, and may also be provided in the commercial and office parking facilities. The location of the electrical outlets shall be specified on building plans and proper installation shall be verified by the Building Safety Division prior to issuance of a Certificate of Occupancy. Mitigation Measure AQ -9: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Building Plans and specifications stipulate that no fireplaces shall be included in the residential units. Mitigation Measure AQ-10: The City of Santa. Ana Planning and Building Agency shall require by contract specifications that maintenance of the proposed project facilities and lease agreements for all non - residential units require the use of low VOC cleaning supplies in all buildings,, and use of low VOC architectural coatings applied as part of building maintenance and upkeep. The architectural coatings shall be 50 grams per liter or less for interior anti 100 g11 or less for exterior coatings, or a content consistent with Rule 1113. Mitigation Measure AQ -11: Prior to issuance of any Grading Permit, the Building and Safety Division shall confirm that the Building Plans and specifications stipulate that project buildings and parking structures shall be equipped with exterior electrical outlets such that a minimum of 10 percent of landscape equipment used onsite can be electrically operated. The location of the electrical outlets shall be, specified on building plans and proper installation shall be verified by the Building Safety Division prior to issuance of a Certificate of Occupancy, The Heritage Mixed Use Projecf 31 ESA 1140730 Stalernenl of Facts and Flnd'mga Sontombor 2015 75A -177 Statement of Facts and Flndings Mitigation Measure AQ -12: The City of Santa Ana Planning and Building Agency shall require by contract specifications that landscape contracts for the project site shall include a mandatory minimum of 10 percent of all landscape equipment used onsite be electrically operated. Mitigation Measure AQ -13: The City of Santa Ana Planning and Building Agency shall require by contract specifications that the lease agreements for all multi - family residential and non - residential units: Require provision of information about OCTA and Metrolink transit services in the vicinity of the project site to all residents and employees. Require that transit routes be posted in common areas of multi - family residential buildings and employee /patron areas for non - residential buildings. Land Use and Planning A. Facts The project is subject to the Airport Environs Land Use Plan (AELUP) for .TWA, which includes policies that were adopted for the purpose of avoiding or mitigating an environmental effect. The project would be consistent with airport land use plan policies with implementation of Mitigation Measures LU -1 and LU -2, which requires resident notification and outdoor signage in open space and recreation areas describing the potential annoyances from airport operations. With implementation of Mitigation Measures LU -1 and LU -2, which are AELUP policies, the project would not conflict with the 7WA AELUP. B. Findings The City finds that: The mitigation measures listed below has been required for, and incorporated into the project, to ensure that the project's potential impacts related to land use and planning remain less than significant. Mitigation Measures Mitigation Measure LU -1: The Development Agreement that is required for implementation of the proposed project shall include a clause requiring that all prospective residents of the proj ect site shall be notified of airport related noise, Notification shall be included in lease /rental agreements and shall state the following: "Notice of Airport in Vicinity. This property is presently located in the vicinity of an airport, within what is known as an airport influence area. For that reason, the property may be subject to some of the amnoyances or inconveniences associated with proximity to airport operations related to noise. Individual sensitivities to those annoyances can vary from person to person. You may wish to consider what airport annoyances, if any, are associated with the property and determine whether they are acceptable to you," The Heritage Mixed Use Prnject 32 Statement of Fects and Findings 75A -178 ESA 1140730 September 2015 Statement of Facts and Findings Mitigation Measure LU -2: The Development Agreement that is required for implementation of the proposed project shall require outdoor signage consistent with AELUP Policy 3.2.4 to be posted within outdoor common or recreational areas on the proj ect site. The signage shall state the following: "Notice of Airport in Vicinity. This property is presently located in the vicinity of an airport, within what is known as an airport influence area. For that reason, the outdoor areas on the property may be subject to some of the annoyances or inconveniences associated with proximity to airport operations related to noise." Noise A. Facts Operation of the project has the potential to expose persons to noise levels in excess of standards established in the City's General Plan or noise ordinance. The project would install new stationary mechanical equipment such as HVAC units and exhaust fans for the new buildings, and the emergency generator for the onsite data center would be relocated and would be equipped with a sound enclosure specifically designed to muffle the noise of the generator, which would reduce noise volumes below the City's standards. To ensure appropriate location and /or noise reduction methods for HVAC equipment, the emergency generator, and any other machinery- related noise, Mitigation Measure NOI -1 would be implemented to adequately shielded or muffle noise from onsite equipment pursuant to City standards. Mitigation Measure NOI -1 would ensure that impacts related to mechanical equipment would be less than significant. 2. Constriction of the project has the potential to result in a substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project. The project's estimated construction noise levels could exceed the existing daytime ambient noise levels at this noise - sensitive receptor by as much as 15 dBA. Therefore, Mitigation Measures NOI -2 through NOI- 6 are included, wlvch require the use of noise reduction devices and techniques during project construction, which include the use of noise barriers. The temporary noise impacts during project construction would be reduced to a less - than - significant level with implementation of Mitigation Measures NO'I -2 through N0I -6. B. Findings The City finds that: The mitigation measures listed below have been required for, and incorporated into the project, to ensure that the project's potential impacts related to noise remain less than significant, Mitigation Measures Mitigation Measure NOI -1: The Building and Safety Division shall confirm that the Building Plans and specifications stipulate that all new mechanical equipment that will be installed at the project site, including ventilation and air conditioning units, and the relocated emergency generator, shall be equipped with adequate acoustical shielding or muffling devices to ensure that noise levels will not The Hedlage Mixed use Pr.]W 33 ESA / 140730 Slaternent of Facts and Findings September 2015 75A -179 Statement of Facts and exceed the City's exterior and interior noise standards for residential properties as established under Sections 18 -312 and 18 -313 of the City's Municipal Code. Proper installation shall be verified by the Building Safety Division prior to issuance of a Certificate of Occupancy. Mitigation Measure NOI -2: Prior to Grading Permit issuance, the Project Applicant shall demonstrate, to the satisfaction of the City of Santa, Ana Planning Division that the project complies with the following: • Construction contracts specify that all construction equipment, fixed or mobile, shall be equipped with properly operating and maintained mufflers and other state required noise attenuation devices, Property owners and occupants located within 500 feet of the project boundary shall be sent a notice, at least 15 days prior to commencement of construction of each phase, regarding the construction schedule of the proposed project. A sign, legible at a distance of 50 feet shall also be posted at the project construction site. All notices and signs shall be reviewed and approved by the City of Santa Ana Planning Division, prior to mailing or posting and shall indicate the dates and duration of construction activities, as well as provide a contact name and a telephone number to inquire about the construction process and register complaints, • Prior to issuance, of any Grading or Building Permit, the Contractor shall provide evidence that a construction staff member will be designated as a Noise Disturbance Coordinator and will be present on -site during construction activities. The Noise Disturbance Coordinator shall be responsible for responding to any local complaints about construction noise. When a complaint is received, the Noise Disturbance Coordinator shall notify the City within 24- hours of the complaint and determine the cause of the noise complaint (e.g., starting too early, bad muffler, etc.) and shall implement reasonable measures to resolve the complaint, as deemed acceptable by the Public Works Executive Director. All notices and all signs shall include the contact name and the telephone number for the Noise Disturbance Coordinator. Prior to issuance of any Grading or Building Permit, the Proj cot Applicant shall demonstrate to the satisfaction of the City's Building Safety Manager that construction noise reduction methods shall be used where feasible. These reduction methods include shutting off idling equipment, installing temporary acoustic barriers around stationary construction noise sources, electric air compressors and similar power tools. • Construction haul routes shall be designed to avoid noise sensitive uses (e.g., residences, convalescent homes, etc.), to the extent feasible. • During construction, stationary construction equipment shall be placed such that emitted noise is directed away from sensitive noise receivers (the Candlewood Suites Hotel). • Construction activities shall not take place outside of the allowable hours specified by the City's Municipal Code Section 18 -3t4, Special Provisions (7:00 a.m. and 8 :00 p.m. on weekdays and Saturdays; construction activities are not permitted on Sundays or legal holidays). The Heritage Mixed Use Project 34 Statement of Facts and Findings 75A -180 ESA/14D?30 Scptember 2018 Statement of Facts and Findings Mitigation Measure NOI-3: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall cent= that the Grading Plan, Building Plans, and specifications stipulate that, the construction contractor shall install a temporary sound barrier, such as plywood structures or flexible sound control curtains, of at least eight feet in height along the project site's property line, adjacent to the Candlewood Suites Hotel property to reduce construction noise. Barriers that obstruct the direct fine -of -sight between the construction area and the receptor would provide approximately 5 dBA reduction in noise levels. Mitigation Measure NOI -4: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Grading Plan, Building Plans, and specifications stipulate that construction activities associated with the proposed project shall: 1) be scheduled to avoid operating several pieces of heavy diesel - powered equipment simultaneously, which causes high noise levels; 2) utilize hydraulically or electrically powered impact tools to avoid noise associated with compressed air exhaust from pneumatically powered tools; and 3) if use of pneumatic tools is unavoidable, an exhaust muffler on the compressed air exhaust shall be used and external jackets on the tools themselves shall be used. Mitigation Measure NOI -5: Prior to issuance of a building permit, the Proj act Applicant shall submit a Construction Management Plan for review and approval by the City of Santa Ana Planning Division, The Construction Management Plan shall, at a minimum, indicate the equipment and vehicle staging areas, stockpiling of materials, fencing (i.e., temporary fencing with opaque material), and construction haul route(s). 7.0 Environmental Effects that Remain Significant and Unavoidable after Mitigation The City of Santa Ana, having reviewed and considered the information contained in the Final EIR, Technical Appendices, and the administrative record, finds, pursuant to California Public Resources Code 21081 (a)(3) and CEQA Guidelines 15091 (a)(3), that specific economic, legal, social, technological, or other considerations, make infeasible the mitigation measures identified in the EIR and, therefore, the project would cause significant unavoidable impact in relation to operational and cumulative air quality and operational and cruulative traffic. Air Quality A. Pacts Implementation of the Heritage Mixed Use Projectt would result in long -tern regional emissions of criteria air pollutants. The majority of the emissions that would be generated by operation of the project are from vehicular trips, mobile sources, and onsito equipment /facilities. Implementation of Mitigation Measures AQ -7 through AQ -13 would reduce the project's operational emissions of criteria pollutants by increasing the energy efficiency of the proposed buildings to five percent beyond that required by 2013 Title 24 standards, equipping three percent of parking spaces with charging stations, requiring the use of low VOC products, provision of outlets for landscaping and requiring 10 percent of landscaphlg be completed electrically, and ire r1whge MI&ee Use Project 35 ESA 1140730 Statement of Facts and Findinge September 2015 75A -181 Statement of Facts provision of information regarding nearby transit services. However, the reductions in eadssions from these measures would not reduce the vehicular related emissions of ROG and NOx below the applicable SCAQMD thresholds, and the vehicle trips that would be generated by the project would cause the exceedance of the SCAQMD's applicable thresholds. Therefore, impacts related to regional operational emissions related to ROG and. NOx would be significant and unavoidable. 2. Pursuant to SCAQMD's cumulative air quality impact methodology, if an individual project results in air emissions of criteria pollutants that exceed the SCAQMD's thresholds, then it would also result in a cumulatively considerable net increase of these criteria pollutants for which the project region is in non - attainment wider an applicable federal or state ambient air quality standard. Therefore, because operational emissions related to ROG and NOx would be significant and unavoidable, cumulative impacts would also be significant and unavoidable, Mitigation Measures Mitigation Measure AQ -7: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Building Plans and specifications stipulate that all onsite buildings shall increase energy efficiencies to five percent (5 %) beyond that required by 2013 Title 24 standards. This may be achieved through, but is not limited to, building shell design and building components such as windows, roof systems, water /imgation, and electrical systems. Mitigation Measure AQ -8: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Building Plans and specifications stipulate that three percent (3 %) (or the amount required by the CalGreen Code, whichever is greater) of all off - street parking spaces shall be equipped with charging stations to encourage the use of electric vehicles. The charging stations shall be installed within each residential parking structure, and may also be provided in the commercial and office parking facilities. The location of the electrical outlets shall be specified on building plans and proper installation shall be verified by the Building Safety Division prior to issuance of a Certificate of Occupancy, Mitigation Measure AQ -9: Prior to issuance of any Grading Permit, the City Engineer and the Building Safety Manager shall confirm that the Building Plans and specifications stipulate that no fireplaces shall be included in the residential units. Mitigation Measure AQ -10: The City of Santa. Ana Planning and Building Agency shall require by contract specifications that maintenance of the proposed project facilities and lease agreements for all non - residential units require the use of low VOC cleaning supplies in all buildings, and use of low VOC architectural coatings applied as part of building maintenance and upkeep. The architectural coatings shall be 50 grams per liter or less for interior and 100 gQ or less for exterior coatings, or a content consistent with Rule 1113. Mitigation Measore AQ -11: Prior to issuance of any Grading Permit, the Building and Safety Division shall confirm that the Building Plans and specifications stipulate that project buildings and parldirg structures shall be equipped with exterior electrical outlets such that a minimum of 10 percent of landscape equipment used onsite can be electrically operated. The location of the electrical outlets The hlerltetre Mlxed Uee Project 36 ESA 1140730 Statement of Feels and Flnftge September 2015 75A -182 Statement of Fasts and Flndings shall be specified on building plans and proper installation shall be verified by the Building Safety Division prior to issuance of a Certificate of Occupancy. Mitigation Measure AQ -12: The City of Santa Ana Planning and Building Agency shall require by contract specifications that landscape contracts for the project site shall include a mandatory minimum of 10 percent of all landscape equipment used onsite be electrically operated. Mitigation Measure AQ-13: The City of Santa Ana Planning and Building Agency shall require by contract specifications that the lease agreements for all multi - family residential and non - residential units: * Require provision of information about OCTA and Metrolink transit services in the vicinity of the project site to all residents and employees. • Require that transit routes be posted in common areas of multi- family residential buildings and employee /patron areas for non - residential buildings. B. Findings The City finds that: Operational emissions associated with the proposed project would exceed the SCAQMD's thresholds of significance for ROG and NOx even with the incorporation of Mitigation Measures AQ -4 through AQ -10. There are no identified mitigation measures that could be implemented that would reduce ROG and NOx emissions below the SCAQMD threshold. Transportation and Traffic A. Facts The project would conflict with an applicable plan establishing measures of effectiveness for the performance of the circulation system and would result in both project level and cumulatively considerable significant and unavoidable impacts. The addition of project traffic to the existing traffic conditions in the project area would result in exceeclance of traffic criteria and thresholds of significance. The needed intersection and roadway improvements that would reduce these impacts are identified in Mitigation Measures TRA -1 through TRA -17. However, several of the improvements are not within the control of the City of Santa Ana to implement, and implementation of several improvements cannot be guaranteed As a result, the traffic impacted locations that are outside of the City of Santa Ana's jurisdiction are significant and unavoidable, These locations include: Intersection of Grand Avenue at Dyer Road (City of Santa Ana /Caltrans) • Intersection of Red Trill Avenue at Valencia Avenue (City of Tustin) a Intersection of SR -55 Northbound Ramps at Dyer Road (City of Santa Ana /Caltrans) The Heritage Mixed Use Project 37 ESA M0730 Statement of rack and Findings September 2016 75A -183 Statement of Facts and • Intersection of Red Hill Avenue at Warner Avenue (City of Tustin) • Intersection of SR 55 Northbound Ramps at Dyer Road (Caltrans) • Intersection of Red Hill Avenue at Alton Parkway (City of Irvine) • Intersection of Hotel Terrace /SR 55 Southbound Ramps at Dyer Road (City of Santa Ana /Caltrans) • Intersection of Auto Mall Drive /SR 55 Southbound Ramps at Edinger Avenue (City of Santa Ana /Caltrans) • Caltrans Freeway Ramps (Caltrans) Mitigation Measures Existing Plus Project Mitigation Measures Mitigation Measure TRA -1: Improvements to intersection No. 20, Grand Avenue at Dyer Road. Widen and restripe the westbound approach of Ayer Road to provide an exclusive right -turn lane. Modify the existing traffic signal as necessary and install all necessary striping, pavement markings and signs per Caltrans requirements and the City of Santa Ana requirements. The implementation of this improvement will require coordination and approval by Caltrans. The improvements will require the width of existing lanes be reduced to a minimum of 10 feet and the removal of the existing sidewalk on the north side of the Dyer Road undererossing, thus restricting pedestrian access. This improvement may require the reconstruction of the Dyer Road undercrossing to provide the recommended travel lane. Year 2020 Plus Project Mitigation Measures Mitigation Measure TRA -2: Improvements to intersection No. 12, Red Hill Avenue at Valencia Avenue. The northbound approach of Red Hill Avenue shall be widened and restriped to provide an exclusive right -true lane. This improvement will require, and shall include, widening along the east curb to accormnodate the proposed right -turn lane, The installation of this hnprovement is subject to the approval of the City of Tustin. Mitigation Measure TRA -3: Improvements to intersection No. 13, Main Street at Warner Avenue. The existing northbound right -turn lane on Main Street shall be converted to a shared through/right -turn lane. Mitigation Measure TRA -4: Improvements to intersection No. 18, Main Street at Dyer Road. The northbound approach of Main Street shall be widened and restriped to provide a third northbound through lane. The existing traffic signal shall be modified to install a northbound right -turn overlap. Mitigation Measure TRA -5: Improvements to intersection No. 21, SR 55 Northbound Ramps at Dyer Road. The westbound approach of Dyer Road shall be widened and restriped to provide an exclusive right -turn lane. The on -ramp for two receiving lanes shall be widened and restriped to the intersection with Dyer Road. These improvements will require, and shall include, widening along the north curb to The Heil tags Mlsed Use Project 38 ESA 1 140730 St.corent of Facts and Flodinge September 2015 75A -184 statement of Facts and accommodate the proposed right -turn lane. The installation of these improvements is subject to the approval of Caltrans. Mitigation Measure TRA -6: Improvements to intersection No. 22, Pullman Road at Dyer Road. The westbound approach on Dyer Road shall be widened and restriped to provide an exclusive right -turn lane. This improvement will require, and shall include, widening along the north curb to accommodate the proposed right -turn lane. Mitigation Measure TRA -7: Roadway Segment W —Dyer Road between SR -55 SB Ramps and Grand Avenue): Widen and restripe Dyer Road to provide a fourth westbound through lane. The installation of this improvement will require additional right -of -way. Mitigation Measure TRA -8: Improvements to Roadway Segment X -- Dyer Road between the SR 55 Northbound Ramps and Pullman Avenue). Dyer Road shall be widened and restriped to provide a fourth westbound through lane. Year 2035 Plus Project Mitigation Measures Mitigation Measure TRA -9: Improvements to intersection No. 14 — Grand Avenue at Warner Avenue. The northbound approach of Grand Avenue shall be widened and restriped to provide a second northbound left -turn lane and an exclusive northbound right -turn lane. The southbound approach of Grand Avenue shall be widened and restriped to provide a second southbound left -turn lane and an exclusive southbound right -turn lane. The westbound approach of Warner Avenue shall be widened and restriped to provide a th rd westbound through lane. Mitigation Measure TRA -10: Improvements to intersection No. 15 — Red Hill Avenue at Warner Avenue. The existing traffic signal shall be modified to include a right turn and the intersection shall be modified to install a westbound right -turn overlap. The installation of this improvement is subject to the approval of the City of Tustin. Mitigation Measure TRA -11: Improvements to intersection No. 18 — Main Street at Dyer Road. The northbound approach of Main Street shall be widened and restriped to provide a second northbound left - turn lane and a third northbound through lane, The southbound approach of Main Street shall be widened and restriped to provide a second southbound left -turn lane and an exclusive southbound right -turn lane. The eastbound approach of Dyer Road shall be widened and restriped to provide a second eastbound left- turn lane and a third eastbound through lane. The westbound approach. of Dyer Road shall be widened and restriped to provide a second westbound left -turn lane and a third westbound through lane. Mitigation Measure TRA -12: Improvements to intersection No. 21 — SR 55 Northbound Ramps at Dyer Road. The westbound approach of Dyer Road shall be widened and rostriped to provide an exclusive right -tum lane. The on -ramp for two receiving lanes shall be widened and restriped all the way back to the intersection with Dyer Road, These improvements will require widening along the north club to accommodate the proposed right -turn lane. The installation of these improvements is subj eet to the approval of Caltrans. The Hernage Axed Use Prajacl 39 ESA /140730 Slalemanl of Facis end Flndings 8ePtshlbW 2015 75A -185 of Facts and Mitigation Measure TRA -13: Improvements to intersection No. 22 — Pullman Road at Dyer Road. The eastbound approach of Dyer Road shall be widened and restriped to provide a fourth eastbound through lane. The westbound approach of Dyer Road shall be widened and restriped to provide a fourth westbound through lane. These improvements will require widening on both the north curb and south curb to accommodate the proposed eastbound and westbound through lanes and to align with the existing improvements on Dyer Road that are located from the east side of the railroad tracks to Red Hill Avenue, which could be restriped to accommodate four through lanes in each direction for build out conditions. Mitigation Measure TRA -14: Improvements to intersection No, 27 — Red Hill Avenue at Alton Parkway. The northbound approach of Red Hill Avenue shall be widened and restriped to provide an exclusive northbound right -tan lane. The southbound approach of Red Hill Avenue shall be widened and restriped to provide an exclusive southbound right -turn lane. The eastbound approach of Alton Parkway shall be widened and restriped to provide a second eastbound left -turn lane. The westbound approach of Alton Parkway shall be widened and restriped to provide a second westbound through lane and a westbound free right -turn lane. These improvements are subject to the approval of the City of Irvine. Mitigation Measure TRA -19: Improvements to intersection No. 30 — Main Street at MacArthur Boulevard in Santa Ana. The existing traffic signal shall be modified to include a southbound right -turn overlap. Mitigation Measure TRA -16: Improvements to intersection No. 19 — Hotel Terrace /SR 55 Southbound Ramps at Dyer Road. The existing traffic signal shall be modified to provide pedestrian push buttons along Dyer Road with a median modification on the west leg of the intersection to provide for a 6 foot pedestrian refuge area per Caltrans requirements, the City of Santa Ana and /or California Manual on Uniform Traffic Control Devices. The installation of this improvement is subject to the approval of Caltrans. Mitigation Measure TRA -17: Iinprovernents to intersection No. 7 — Auto Mall Drive /SR 55 Southbound Ramps at Edinger Avenue. The existing traffic signal shall be modified to provide a northbound right -tuna overlap and pedestrian push buttons along Edinger Avenue. In addition, a median modification shall be implemented on the west leg of the intersection to provide for a 6 foot pedestrian refuge area per Caltrans requirements, the City of Santa Ana Standard Design Guidelines and/or California Manual on Uniform Traffic Control Devices. The installation of this improvement is subject to the approval of Caltrans, B. Findings The City finds that: Operational Traffic generated by the project would exceed applicable levels of service criteria and thresholds of significance at several intersections and roadway locations and would result in both project level and cumulatively considerable significant and unavoidable impacts. Intersection and roadway improvements that would reduce these impacts are identified in Mitigation Measures TRA -1 through TRA -17. However, several of the mitigation measures are not within the control of the City of Santa Ana to implement. Thus, and implementation of several improvements cannot be guaranteed. As a result, the traffic impacted locations that are outside of the City of Santa Ana's jurisdiction are significant and unavoidable. The Herded. Wad Use Project 40 Statement of Facts and Flndinge 75A -186 ESA/ 140730 September 2015 Statement of 8.0 Project Alternatives CEQA Guidelines, Section 15126.6(c) requires that an EIR analyze a reasonable range of alternatives to the proposed project that could feasibly avoid or reduce any significant unavoidable impacts. The Draft SIR addresses the environmental effects of alternatives to the Heritage Mixed Use project. A description of these alternatives, a comparison of their environmental impacts to the proposed project, and the City's findings are provided below. These alternatives are compared against the project relative to the identified project impacts and the ability to meet the project objectives. Alternatives Considered but Eliminated CEQA Guidelines, Section 15126,6(c), states that alternatives may be eliminated from consideration in an EIR if they fail to meet most of the project objectives, are infeasible, or do not avoid or substantially reduce any significant environmental effects. In addition, alternatives that are remote or speculative, or the effects of which cannot be reasonably predicted, also do not need to be considered (CEQA Guidelines, Section 15126.6(f)(3)), Alternative Location An alternative site for the proposed project was eliminated from further consideration. The project applicant is the owner of the project site and does not own an alternative site within Santa Ana where the proposed project could be developed. The project objectives are to redevelop an existing underatilized parcel and implement a mixed use development that would provide a balance of land uses, utilize existing infrastructure, providing additional housing near employment centers, and inalnove a gateway image to the City, all of which are consistent with the opportunities provided by the project site. The ability of the applicant to find and purchase an alternative site in Santa Ana that is large enough for the proposed project and available for redevelopment — and would achieve the project obj actives - is considered speculative. Furthermore, the project proposes use of the existing office structure, while an alternative location would require development of a new two -story 56,000 square foot office building and associated surface parking that would not be required by the project and would result in greater impacts. Thus, the alternative location alternative was eliminated from further consideration. Alternative 1: No Project /No Build CEQA also requires that a "No Project" alternative be considered. Additionally, CEQA requires that an EIR identify the environmentally "superior alternative." If the "No Project" alternative is determined to be the envirommentally superior alternative, the EIR shall also identify an onviromnentally superior alternative among the other alternatives (CEQA Guidelines, Section 15126.6(e)(2)). Under this alternative, no development would occur on the project site. The project site has a City of Santa Ana, General Plan Land Use designation as PAO (Professional and Administrative Office) and is zoned as M -1 (Light Industrial). Under Alternative 1, the existing office, data center, and warehousing uses onsite would remain and the existing uses would continue to operate, pursuant to the existing lease agreements. The Henlage Mlxed Use Protect 41 ESA 1 140730 Sln lament of Facts and Findings Seplambor 2015 75A -187 Findings: The City finds that the No Project No Build Alternative would reduce the potential construction related environmental impacts and reduce the potential operational impacts related to: aesthetics, air quality, GHG emissions, hazards and hazardous materials, noise, public services, traffic and utilities. Additionally, this alternative world not require a general plan or zoning amendment, which would reduce land use and planning related impacts compared to the proposed project. However, the No Project/No Build Alternative would result in greater impacts related to hydrology, water quality, and stormwater drainage, In addition, this alternative would not improve the jobs to housing balance within the region or provide new public park and recreation facilities for existing residents within the project vicinity, Furthermore, the No Project/ No Build Alternative would not meet any of the project objectives. Alternative 2: Reduced Project Alternative Under this alterative, a 25 percent reduction in the number of residential units and commercial space would be built. Therefore, under this alternative, 915 multi- family residential units and a total of 13,567 square feet of commercial retail and restaurant space would be developed; along with an associated reduction in parking and recreation area. The office building portion of the proposed project would occur under this alternative, and this alterative would require a General Plan Amendment and a Zone change, similar to the project. Findings: The Reduced Project Alternative would reduce impacts to construction noise, public services, and utilities and infrastructure compared to the project. Less than significant impacts related to aesthetics, cultural resources, geology and soils, GHG emissions, hazards and hazardous materials, hydrology and water quality, land use and planning, operational noise, population and housing, and parks and recreation would be similar under the Reduced Project Alternative as compared to the proposed project. In addition, impacts related air quality and traffic would be reduced under the Reduced Project Alternative compared to the proposed project; however, impacts would remain significant and unavoidable. Therefore, the Reduced Proj act Alternative would reduce, but not eliminate the significant and unavoidable impacts that would result from the proposed project. The Reduced Project Alternative would meet the project objectives; however, it would not eliminate the significant and unavoidable impacts of the proposed project. Alternative 3: Development of a Light Industrial Business Park /Build Out Under the Existing Zoning Alternative Under this alternative, the project site would be redeveloped into a light industrial business park as allowed by the existing zoning designation of M -1 (Light Industrial), which allows a maximum Floor Area Ratio (FAR) of 0.45 and would support a maximum development of 369,301.5 square feet on the 18.84 acre parcel. A majority of the onsite development would be demolished, removed, and replaced to provide new builduig structures that would be developed pursuant to current building requirements, such The Herlloge Mixed Use Project 42 Slalemenl of Facts and Findinge 75A -188 ESAl 140730 September 2015 Statement as energy efficient power systems, drought tolerant landscaping, storm water filtration, and other LID requirements, The existing office portion of the onsite stricture world be retained, and the exterior renovated to provide a new fagade to be consistent with the new strictures that would be developed adjacent to the existing office stricture. This alterative would be consistent with the existing land use designation, which is PAO (Professional and Administrative Office) and M -1 (Light Industrial) zoning designation. Findings: The Light Industrial Business Park Alternative would result in a significant unavoidable impact for exceedance of GHG emissions thresholds, which would not occur by the proposed project. In addition, traffic impacts would remain significant and unavoidable. The Light Industrial Business Park Alternative would also result in greater environmental impacts related to hazardous materials, operational noise, jobs - housing imbalance, and utilities and service systems. Although, this alternative would reduce operational air quality impacts to a less than significant level, the Light Industrial Business Park Alternative would not meet a majority of the project objectives. Environmentally Superior Alternative CEQA does not require the Lead Agency (City of Santa Ana) to approve the environmentally superior alternative. Conversely, CEQA requires that an EAR consider a reasonable range of feasible alternatives (CEQA Guidelines Section 15126.6(a)) and then the lead agency may elect to approve the project or any of the analyzed alternatives. Pursuant to CEQA, this alternatives analysis has been prepared for the City to consider environmentally superior alternatives and also determine whether the benefits of the project or its alternatives outweigh the potential environmental impacts. Findings; The Environmentally Superior Alternative would be the No Project/No Build Alternative because no construction activities or intensification of onsite uses would occur, and it would reduce the significantly adverse impacts that would result. from the proposed project. The Environmentally Superior Alternative among the other alternatives would be the Reduced Project Alternative, which would involve reducing the build out of the proposed project by 25 percent. As a result, the overall impacts from implementation of the Reduced Project Alternative would be incrementally less than those of the proposed project. However, impacts related to long -term regional emissions of criteria air pollutants and intersection and roadway traffic impacts would exceed thresholds and would remain significant and unavoidable. Therefore, the Reduced Proj ect Alternative would result hr fewer vehicular trips and criteria pollutants, but would result in the same significant and unavoidable impacts that would result from the proposed project. The Heritage Mixed Use Project 43 ESA 1 140730 Statement of Facto and Findings September 2oi5 75A -189 Statement of Facts and 9.0 Findings Having received, reviewed and considered the information in the record before it, including the Final FIR, which is hereby incorporated by reference, the Findings listed above are hereby adopted by the City as required by CEQA (specifically, CCR, Title 14, Section 15091 through 15093) in conjunction with the approval of the project, which is set forth below, The City is the Lead Agency for the environmental documentation for the project evaluated in the Final FIR. Based on the substantial evidence in the record before it, the City finds that the Draft FIR and Final EIRs were prepared in compliance with CEQA and the CEQ,4 Guidelines, The City finds that it has independently reviewed and analyzed the Draft FIR and Final FIR for the Heritage Mixed Use project, that the Draft FIR which was circulated for public review reflected its independent judgment and that the Final FIR reflects the independent judgment of the City. The City has based its actions on full appraisal of all viewpoints, including all comments received up to the date of the adoption of these Findings, conceming the potential environmental impacts identified and analyzed in the Final FIR, In addition, the City has reviewed and considered the Mitigation Monitoring and Reporting Program (MMRP) for the project, which is contained in the Final FIR and which describes the process to ensure implementation of the mitigation measures that have been incorporated in the approved project to reduce or avoid significant adverse impacts of the prcj ect on the environment. The MMRP will ensure CEQA compliance during project implementation. Tne Heritage Mixed Use Project 44 ESA/ 140730 Sletement of Facts and Findings September 2015 75A -190 Exhibit B California Environmental Quality Act Statement of Overriding Considerations Resolution No. 2015 -XXX Page 11 of 16 75A -191 Statement of Overriding Considerations The following Statement of Overriding Considerations is made in connection with the approval of the Heritage Mixed Use project (project). CEQA requires the decision - making agency to balance the economic, legal, social, technological or other benefits of a project against its unavoidable environmental risks when determining whether to approve a project (CEQA Guidelines Section 15091). If the benefits of the project outweigh the unavoidable adverse effects, those effects may be considered acceptable. CEQA requires the agency to provide written findings supporting the specific reasons for considering a project acceptable when significant impacts are unavoidable. Such reasons must be based on substantial evidence in the E1R or elsewhere in the administrative record. The reasons for proceeding with this project despite the adverse environmental impacts that may result are provided in this Statement of Overriding Considerations CEQA Guidelines Section 15093). The City Council finds that the economic, social and other benefits of the proj ect outweigh the significant and unavoidable impacts to operational and cumulative air quality and operational and cumulative traffic. In making this finding, the City Council has balanced the benefits of the project against its unavoidable impacts and has indicated its willingness to accept those adverse impacts. The City Council finds that each one of the following benefits of the project, independent of the other benefits, would warrant approval of the project notwithstanding the unavoidable environmental impacts of the project; A, The City Council finds that all feasible mitigation measures have been imposed to either lessen project impacts to less than significant or to the extent feasible, and furthermore, that alternatives to the project are infeasible because they generally have similar or greater impacts, or they do not meet the project objectives, or are otherwise infeasible as fully described in the Statement of Facts and Findings. B. The project strikes a proper balance of land uses between commercial and office development that focuses on economic activity, and high- quality residential development with open space and recreation facilities, that emphasizes a mixed -use envirornnent in which residents benefit from nearby employment opporturvties. C. The project will rehabilitate an underutilized property, encourage increased levels of capital investment, and enhance the City's economic and fiscal viability pursuant to the City of Santa Ana Strategic Plan. The Heritage Mixad Use Project t ESA 1140730 Statement of Overriding Conslderetlons September 2015 75A -192 Statement of Overrlding Conslderatlons D. Implement Southem California Association of Government's Regional Comprehensive Plan by providing additional housing near existing employment centers. E. The project will benefit thojobs housing balance. The addition of residential units within the project vicinity would result in a cumulative benefit to the jobs - housing balance for this region of Orange County, and could reduce physical impacts related to the jobs - housing balance, such as regional traffic, air quality emissions, and greenhouse gasses, F. The project will create additional housing units beyond what currently exists in the area or what currently could be developed in that area and thus will add to the available housing stock in the area. G. The project will augment the City's economic base by providing additional tax revenues resulting from the commercial component of the project. H. The project will facilitate non- motorized transportation, because it would include bicycle and pedestrian connectivity between the onsite residential, retail, restaurant, park, recreation, and office uses; and is located adjacent to existing public transportation that provides connectivity to nearby regional Metrolink transit. 1. The project would result in increased pervious surfaces and would filter drainage prior to discharge. This would have a positive impact on water quality and hydrology compared to existing conditions. J. The project would exceed the City's requirements related to open space, park, and recreation facilities, and would provide both public and private recreation onsite. Thus, the project would provide new facilities for community use, and would assist in offsetting increased usage of other park and recreation facilities in the region. The City Council finds that the foregoing benefits provided through approval of the Heritage Mixed Use project outweigh the identified significant adverse environmental impacts. The City Council fiirther finds that each of the individual Heritage Mixed Use project benefits discussed above outweighs the unavoidable adverse environmental effects identified in the Draft and Final EIRs; and therefore finds those impacts to be acceptable. The City Council further finds that each of the benefits listed above, standing alone, is sufficient justification for the City Council to override these unavoidable environmental impacts. The Hediego Wed Usa POjeCI Statement of OverrIding Cons dendans 75A -193 ESA / 140730 September 2015 Resolution No. 2015 -XXX Page 12 of 16 Exhibit C California Environmental Quality Act Mitigation and Monitoring Program 75A -194 CHAPTER 4 Mitigat Monitoring and Reporting Program Pursuant to Section 21081,6 of the Public Resources Code and the CEQA Guidelines Section 15097, a lead agency is required to adopt a monitoring and reporting program for assessing and ensuring compliance with the required mitigation measures applied to a proposed project for which an EIR has bean prepared. As stated in the Public Resources Code (Section 21081.6(a)): the public agency shall adopt a reporting or monitoring program for the changes made to the pwJect or conditions ofproject approval, adopted in order to mitigate or avoid sign(facant effects on the environment." Section 21081.6 provides general guidelines for implementing mitigation monitoring' programs and indicates that specific reporting and/or monitoring requirements, to be enforced during project Implementation, shall be defined prior to final certification of the EiR, The lead agency may delegate reporting or monitoring responsibilities to another public agency or a private entity, which accept such delegation. The lead agency, however, remains responsible for ensuring that Implementation of the mitigation measures occur in accordance with the program, The mitigation monitoring and teportin.g program table below lists mitigation measures that are required to reduce the significant effects of the proposed project. To ensure that the mitigation measures are properly implemented, the mitigation monitoring and reporting program provide the following information: • Mitigation Measure(s): The aetiou(s) that will be taken to reduce the impact to a loss. than- signifrcantlevel. • Implementation, Monitoring, and Reporting Action: The appropriatc steps to implement and document compliance with the mitigation measures, • Responsibility: The agency or pxivato entity responsible for ensuring implementation of the mitigation measure, However, mitii the o' tigation measures are completed, the City of Santa Ana, as the CPQA bead Agency, remains responsible for ensuring that implementation of the mitigation, measures occur In aocordance with the mitigation monitoring and reporting program (CEQA Guidelines, Section 15097(a)), • Monitoring Phase: The general tinning for conducting each monitoring task. 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W 7 A w (li F. w z w 0 O qLL K 0 a U' Z K Im W Q z a Z O M O nL Z O Q f9 F- A C N a U Yaa c a D e b o�c Q5ti N a w N O K�4 C O N+� E a c. Ea G °a C � O< �a m LL u w w wLL w�' a�- C C mLL aN aN a� c cC FpFmF C m fn ° N N w C N , ro V? `I E N yC. 0C U��OU m U4 moo CJa��U N N m m l N r� rn N N N N vhf's', c 5 C C C C m m m m U U N N m m l N r� rn N N N N c c c 5 C C C C m m m m Tp y G 2 m _ rp C LN C —C NN�NQ L'O NN g- f3 N G h> w C D p N O m 4'm NQLNC� �:E MU - •a Q . A > J z Y D N MM- z 4 wo /j C .O c o .O w m c= Ep E «<G' A d S O O N P C OrDJ NO <NL e4 -Dm c E o ffi L O <~ 'o H 1.2 N ° = N < S:GE 4 mE��an3> 4rO° M °E °'t axi> �'vc a c¢E =M r O i°. C N Z D N .O N N > N OI m m a'e a c D in m y 8 Ea,G �y °c `�i .GO �-NO€ Etc .z O N L� 6 L° � m c DYC�NO FNNJ9C =bCN i=mp nma�a°i °1mg mo.Q roNAo a N9 N d G N C Z NI N rp N YJ C° �y jr d qmm G N rn��oc I.p aOicOF�' N N 1� m ak m aO1Tsi%Ir' DG pyO'um. Or � vo v 073 C N N@ N i-- y �j 6 0 O N r .ly' 9 ry N 4 cm d <-E F9� <�EU> c y•c 4aC NE a a mmaL�m yw�GvS $U« ao."0roN O €:S E Ero ioK N.3 U�'� IM1 �mdwWc3mmry am Y =ia rO+Omea' C � <a00lC mGa l^ N v c a v aNLE � � K O ohm c$41E r°K v:p v la � M c U �HNE o.m 75A -208 a 0 z �a N v a• ep p� 5� m a Exhibit D Conditions 9f Approval for Vesting Tentative Tract Map No. 2015.03 Vesting Tentative Tract Map No. 2015 -03 (County Map No. 17962) is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations, The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this tentative tract map. The applicant must remain in compliance with all conditions listed below throughout the life of the tentative tract map. Failure to comply with each and every condition may result in the revocation of the tentative tract map. A. Planning Division 1. Comply with all conditions and requirements from the Development Review Committee (DRC) for the development project (DP No. 2014 -20). 2, The Covenants, Conditions and Restrictions (CC &Rs) for this project must be reviewed and approved prior to approval of the final tract map. 3, All real estate signage must be removed from the site within one year from the date of installation. An extension of time may be granted as determined by the Planning Manager. 4. The final map must be approved and recorded prior to issuance of building permits. 5. The final map and all improvements required to be made or installed by the subdivider must be in accordance with the design standards and specifications of the Santa Ana Municipal Code and the requirements of the State Subdivision Map Act. 6. Development within the area of the map is subject to development and permit fees in effect at the time of permit issuance. 7. Development within the area of the map is subject to design and development standards in effect at the time of permit issuance. 8. Two copies of the recorded final map and CC &Rs shall be submitted each to the Planning Division, Fire Department, Building Division, and Public Works Agency within 10 days of recordation. Resolution No. 2016 -XXX Page 13 of 16 75A -209 The project shall incorporate on -site professional property management for the commercial component. 10. A Parking Management Plan must be submitted prior to building plan check. Covenants, Conditions and Restrictions (CC &Rs) that restrict truck delivery hours to non -peak periods shall be submitted prior to building plan check. 11. A Sign Program addressing wall and monument signage for the development must be submitted to the Planning Division for approval prior to submittal into building plan check. The sign program shall include details of the signage (text, materials) as well as a maintenance plan delineating the long -term repair and replacement of any graphic. 12. A Public Art Plan which proposes a specific works) of art for a specific location(s) shall be submitted to the Planning Commission for consideration. All public art approved by the Planning Commission shall be completely installed prior to the issuance of a certificate of occupancy for the project. 13. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the hardscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on Sheet MLP1.1. The exact specifications for these items are subject to the review and approval of the Planning Commission. 14. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. 15. A detailed water feature plan must be reviewed and approved prior to issuance of any building permits. The plan shall include at least one water feature between the retail building and the Cinema Tower, details on the hardscape design and lighting concepts and an installation plan. The exact specifications for these items are subject to the review and approval of the Planning Commission. Resolution No. 2015 -XXX Page 14 of 16 75A -210 16. The following items must be included as exterior amenities for the development; Enhanced paving in the retail parking lots, the retail walkways and the retail courtyards, and at least one water feature. The exact specifications for these items are subject to the review and approval of the Planning Division. The amenities shall be completely installed prior to issuance of a certificate of occupancy for the building. 17. Pedestrian walkways shall be provided through all lots to establish pedestrian pathways throughout the development. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting and landscape planters as shown on the plans. The materials and design of the walkway is subject to the review and approval of the Planning Manager. The improvements in each phase must be completed prior to occupancy of the first unit in the respective phases. 18. Development, operational and maintenance standards shall be established for the number, style and location of outdoor seating. The seating shall be made of a durable material such as concrete or painted iron and be designed to minimize effects from vandalism, skateboarding and weather. This seating shall be reviewed and approved in conjunction with the landscape plan and must be submitted prior to building plan check. 19. Trash receptacles shall be located in high activity areas, such as plazas and other public open spaces. The style of the receptacles shall be compatible with other plaza furnishings. 20. All street furniture surfaces, pedestrian level walls and amenities shall incorporate graffiti resistant coatings. 21. Glass storefronts and windows within the retail component shall provide clear glass. The use of opaque or semi - opaque storefronts or glass is prohibited. 22. Public payphones, if provided, may only be located within buildings. 23. The project shall be in compliance with all mitigation measures identified in the environmental impact report. 24. The proposed private street for the project (Lot A) shall be designed to the City's private street standards. Resolution No. 2016 -XXX Page 15 of 16 75A -211 B. Police Department 1. A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance equipment, and hardware. The project will be required to have a minimum of four state licensed uniformed security personnel. One security officer will be required for each building, one for the podium level and one for the parking garage. 2. A minimum 12 -inch shatterproof convex mirror shall be installed at each stair landing. All doors leading into stairwells shall be equipped with a minimum 5 -inch by 20 -inch fire rated window. The last flight of stairs shall be fully enclosed at its base. 3. The City of Santa Ana parking structure design standards shall be followed in its entirety. Duress alarms allowing voice communication with security personnel shall be placed in strategic locations, approved by the Police Department, throughout the parking garage. 4. All project walkways shall be illuminated to a minimum maintained one footcandle of light. 5. All elevators serving the residential component of the project shall be equipped with card readers at the garage levels to restrict unauthorized access into the residential towers. The elevator lobbies shall be designed and constructed of material that allows maximum visibility of the interior of the lobby from the parking decks. Glazing material will be used to its maximum extent. Resolution No. 2015 -XXX Page 18 of 16 75A -212 The attached resolution addresses Recommended Action 6 on the Request for Council staff report: 6. Adopt a resolution finding the project to be consistent with the purposes of the State Aeronautics Act. EXHIBIT F 75A -213 75A -214 LS 1.26.16 RESOLUTION NO.2016 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA OVERRULING THE DETERMINATION BY THE AIRPORT LAND USE COMMISSION OF THE COUNTY OF ORANGE OF INCONSISTENCY OF THE PROPOSED HERITAGE MIXED USE DEVELOPMENT PROJECT, 2001 EAST DYER ROAD, WITH THE CURRENT ORANGE COUNTY AIRPORT LAND USE PLAN, WITH SUPPORTIVE FINDINGS 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 ( "City ") hereby finds, determines and declares as follows: BACKGROUND A. The Proposed Proiect 1. The City is being asked to approve a General Plan Amendment and Amendment Application ('Zone Change ") for a proposed project to be located on an 18.84 acre site at 2001 East Dyer Road, at the northwest corner of Dyer Road and Redhill Avenue ( "Heritage Mixed Use Development Project") and to overrule the finding by the Orange County Airport Land Use Commission ( "ALUC") of inconsistency with the Airport Environs Land Use Plan ( "AELUP ") for John Wayne Airport. 2. The project includes public and private (for residents) open space recreational facilities on the project site, a 1.26 acre public central park, including various amenities, that will be developed and would connect to open space areas along the northern and eastern boundaries. In addition, approximately 327,302 square feet of private open space, as well as other private recreational amenities, would be provided for residents. 3. The following approvals are requested or required in order to implement the project as proposed: a. General Plan Amendment. To allow the construction of a mixed -use development on this parcel, a General Plan amendment is required. Currently, the land use designation for this site is Professional and Administrative Office (PAO), which allows office development and ancillary commercial uses. This project will require an amendment to the Land Use Element to amend the General Plan Land Use designation of the site to District Center (DC). b. Vesting Tentative Tract Map. A tentative tract map to establish lots Resolution No. 2016 -XXX Page 1 of 8 75A -215 for residential development purposes pursuant to Chapter 34 of the Santa Ana Municipal Code. c. Affordable Housing Implementation Plan. A program specifying how the proposed project would meet the City's affordable housing requirements. d. Development Agreement. A Development Agreement between the Applicant and the City of Santa Ana describing development rights and public benefits, pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. e. Environmental Impact Report. An environmental impact report (EIR) to evaluate the environmental impacts resulting from the proposed project, in accordance with the California Environmental Quality Act of 1970 (CEQA), as amended (Public Resources Code Section 21000 at seq.), and the State CEQA Guidelines for Implementation of CEQA (California Code of Regulations, Title 14, Section 15000 etseq.). 4. The General Plan Amendment would change the current Professional and Administrative Office ( "PAO ") designation to District Center ( "DC "). The DC designation would allow the construction of mixed -use development. The Zone Change would change the zoning designation to Specific Development ( "SD "), from the current zoning designation of Light Industrial ( "M -1 ") which allows uses such as warehouses, wholesale operations and manufacturing uses as well as support commercial businesses. B. The ALUC and Its Requirements 1. The ALUC is charged with the adoption of an AELUP, establishing guidelines for compatible development in the vicinity of an airport within the jurisdiction of the County of Orange. California Public Utilities Code § 21670(a) sets forth the fundamental purpose of the AELUP as: (a) ".. , to promote the overall goals and objectives of the California airport noise standards adopted pursuant to section 21669 and to prevent the creation of new noise and safety problems;" and (b) "... protect public health, safety, and welfare ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within the areas around public airports to the extent that these areas are not already devoted to incompatible uses." 2. Public Utilities Code § 21676(b) requires the City to submit to the ALUC all proposed general and specific plans adoptions and amendments that will have an effect within the planning boundary of the AELUP so that the ALUC can determine whether the proposed action is consistent with the provisions of the AELUP. Public Utilities Code § 21676(b) also provides that, if the ALUC determines that a proposed Resolution No. 2016 -XXX Page 2 of 8 75A -216 action is inconsistent with the AELUP, the local agency may, after a public hearing, propose to overrule the Commission by a two - thirds vote of its governing body if it makes specific findings that the proposed action is consistent with the purposes set forth in section 21670 of the Public Utilities Code. 3. Public Utilities Code § 21676(b) also requires that a public agency making a decision to overrule shall give notice to the California Department of Transportation, Aviation Division, and ALUC at least 45 days prior to the final decision to overrule. After that notification, the ALUC and Caltrans have 30 days from the receipt of the proposed decision to send advisory comments. C. Actions Taken To Date 1. On October 12, 2015, the City's Planning Commission met and recommended approval of the project with certain conditions. 2. On October 15, 2015, the ALUC met and reviewed the proposed amendments to the General Plan and Zoning Code and determined that those changes would be inconsistent with the standards set forth in the AELUP after having evaluated the project for conflicts with respect to aircraft noise, building heights, flight tracks, safety zones and development of heliports, thus giving rise to the City Council's notice of intent to overrule. 3. On November 3, 2015, the City Council of the City of Santa Ana met and (1) approved issuing a Notice of Intent to overrule; and (2) determined to give notice to the ALUC of its decision to overrule as required by Public Utilities Code § 21676(b). 4, On December 16, 2015, the City gave proper notice to the ALUC of its intention to overrule the ALUC's October 15, 2015 determination of inconsistency. 5. On January 15, 2016, the City received a comment letter from the ALUC on the overrule findings. The letter affirmed earlier comments from the ALUC and their staff stating that residential uses under an aircraft approach centerline for the airport would not coexist with the overflight of aircraft and that noise complaints would be generated from affected residents. As of this date no comments have been received from Caltrans. Section 2. The City Council of the City of Santa Ana hereby makes the following findings to overrule the Orange County ALUC's determination that the Heritage Mixed Use Development Project is inconsistent with the Orange County AELUP. FINDINGS; A. Based on the ALUC's evaluation, relevant sections of the City's General Plan, and other applicable ordinances and regulations, the City Council of the City of Santa Ana hereby finds and determines that the proposed project does not create new Resolution No, 2016 -XXX Page 3 of 8 75A -217 noise and safety issues and, thus, meets the purposes of Public Utilities Code § 21670(a) where: B. The proposed project does not interfere with the orderly expansion of John Wayne Airport ( "JWA") in that the ALUC determined that the project does not penetrate the approach corridor imaginary surfaces reserved for air navigation; C. The proposed project is located within the Federal Aviation Regulation Part 77 "imaginary surface" within which the surface level for notification to the FAA of the project is 152.8 feet Above Mean Sea Level ( "AMSL ") and the maximum height of any structure within the project is 124 feet AMSL. The project proponent submitted the required notification to the FAA in the form of a Form 7460 -1, and the FAA determined and the ALUC confirmed that no structure within the project would penetrate the surfaces set forth in Part 77, exceedance of which would constitute an obstruction to air navigation; D. The proposed project is not located within the John Wayne Airport 60 or 65 dBA Cumulative Noise Equivalent Level ( "CNEL ") noise contours indicating areas of significant noise impact as set forth in the John Wayne Airport Master Plan. While a small portion of the property is within the existing JWA 60 CNEL contour, the Final Environmental Impact Report ( "FEIR ") for the project includes mitigation measure LU -1 which provides that all prospective residents of the project site shall be notified of airport related noise (via a notice of airport in vicinity language in the lease /rental agreements pursuant to Civil Code § 1102.6(a)), and mitigation measure LU -2 which requires outdoor signage informing the public of the presence of operating aircraft consistent with AELUP Policy 3.2.4 which requires that notice be provided within the outdoor common or recreational areas of the project site; E. The proposed project is not within the safety zone areas for John Wayne Airport, within which limitations on development and occupancy apply to protect surrounding occupants from adverse airport impacts. Thus, the proposed project is not limited by the restrictions on density of residential use and intensity of commercial use applicable to safety zones within the AELUP; and F. The impact of aircraft overflights of the proposed project will be mitigated by proposed construction and other noise mitigation measures in the FEIR; and by the existing curfew at JWA during which arriving flights cease between the hours of 11:00 p.m. and 7:00 a.m. on weekdays and 11:00 p.m. and 8:00 a.m. on Sunday, and departing flights cease between the hours of 10:00 p.m. and 7:00 a.m. on weekdays and 10:00 p.m. and 8:00 a.m. on Sundays. Section 3. Based on the above evidence and further Findings made attached hereto and incorporated herein as Exhibit A, as well as the remainder of the record in this case, the City Council of the City of Santa Ana hereby resolves to overrule the Orange County ALUC's determination that the Heritage Mixed Use Development Project is inconsistent with the Orange County AELUP. Resolution No. 2016 -XXX Page 4 of 8 75A -218 Section 4. This resolution shall take effect immediately upon its adoption by the City Council and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of , 2016. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Resolution No. 2016- to be the original resolution adopted by the City Council of the City of Santa Ana on , 2016, and that said resolution was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Resolution No. 2016 -XXX Page 5 of 6 75A -219 EXHIBIT A FURTHER FINDINGS A. It is in the public interest to: provide for the orderly development of each public use airport in this state and the area surrounding these airports so as to promote the overall goals and objectives of the California airport noise standards adopted pursuant to Public Utilities Code Section 21669 and to prevent the creation of new noise and safety problems. To provide for the orderly development of John Wayne Airport (JWA) and the area surrounding the airport, the Airport Land Use Commission (ALUC) adopted the 2008 Airport Environs Land Use Plan (AELUP) on April 17, 2008. The AELUP guides development proposals to provide for orderly development of the airport and the area surrounding the airport through implementation of the standards in Section 2.1 (aircraft noise, safety compatibility zones, building height restrictions). On October 15, 2015, the City of Santa Ana presented The Heritage, a mixed -use residential and commercial development to the ALUC for a determination of consistency with the Airport's AELUP. The ALUC staff report dated October 15, 2015, states that based on staff's review of the proposed Project with respect to compliance with the AELUP, including review of appropriate height restrictions, imaginary surfaces, safety zones and environmental compliance, the proposed Project may be found inconsistent with the AELUP. 1 The Project is consistent with the AELUP for the following reasons: a. Lack of evidence of inconsistency by the ALUC There was no evidence presented by or to the ALUC at its hearing of October 15, 2015, to support its finding of inconsistency, nor was there a request to provide supplemental information such as an aeronautical study. The letter submitted to the City on October 16, 2015 by the ALUC staff states only "The Commission is charged by PUC Section 21674(a) to assist local agencies in ensuring compatible land uses in the vicinity of ... existing airports to the extent that the land in the vicinity of those airports is not already devoted to incompatible uses." Further, the letter stated that "to coordinate planning at the state, regional and local levels so as to provide for the orderly development of air transportation, while at the same time protecting the public health, safety and welfare." b. The residential and commercial land uses under the proposed project are consistent with the noise standards of the AELUP: The proposed project is not completely located within the JWA Master Plan 60 or 65 Resolution No. 2016 -XXX Page 6 of 8 75A -220 dBA CNEL noise contours. The Final Environmental Impact Report (FEIR) for the proposed project identifies that the western portion of the property is within the existing JWA 60 CNEL contour. Therefore, the FEIR includes Mitigation Measure LU -1 stating that all prospective residents of the project site shall be notified of airport related noise (via Notice of Airport in Vicinity language in lease /rental agreements). The FOR also includes Mitigation Measure LU -2 which requires outdoor signage informing the public of the presence of operating aircraft consistent with AELUP Policy to be provided within outdoor common or recreational areas on the project site. C. The residential and commercial land uses under the proposed project are consistent with the safety standards of the AELUP. AELUP Section 2.1.2 sets forth Safety Compatibility Zones to support the continued use and operation of an airport by establishing compatibility and safety standards to promote air safety and reduce potential safety hazards for persons living, working, or recreating near JWA. The proposed project site is not within the safety zone areas for JWA. d. The residential and commercial land uses under the proposed project are consistent with the height standards of the AELUP. In Section 2.1.3 of the JWA AELUP, the Commission has incorporated the standards for height limits for determining obstructions and has incorporated the definitions of "imaginary surfaces" for airports as defined in Federal Aviation Regulations (FAR) Part 77. The proposed project is located within the FAR Part 77 "imaginary and notification surfaces" referral area. The proposed maximum height for the project is 124 feet above mean sea level (AMSL) and does not penetrate the notification surface which begins at 152.8 feet AMSL. The proposed project is located within the approach corridor for JWA which would be penetrated at 270 feet AMSL. The proposed maximum building height at this site is 124 feet AMSL. Because the project does not penetrate the approach corridor imaginary surface, the project will not impact areas reserved for air navigation. The project Aeronautical Study No. 2015 -AWP- 1655 -OE. 2. The City is requiring the proposed project to meet the City's noise standards of 45 dB CNEL for the interior of residential uses, which is consistent with the standards established to promote the overall goals and objectives of the California airport noise standards. The City is also proposing a condition to demonstrate compliance with noise standards prior to each building permit. Through implementation of the City's noise standards and project conditions, the proposed project meets the AELUP standards for California airport noise. Resolution No, 2016 -XXX Page 7 of 8 75A -221 3. The standards set forth in AELUP Sections 2 and 3 were adopted to prevent the creation of new noise and safety problems. As set forth above, the proposed project complies with the noise criteria, safety standards and height requirements established in Sections 2 and 3. B. It is the purpose of the State Aeronautics Act to protect the public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses. 1. To protect the public health, safety and welfare by ensuring orderly expansion of airports, the ALUC adopted the 2008 AELUP, The AELUP standards guide development proposals to provide for the orderly development of the airport and the area surrounding the airport through implementation of the standards in AELUP Sections 2 and 3. As set forth above, the proposed project is consistent with the AELUP noise standards, safety standards and building heights. 2. To protect the public health, safety and welfare the ALUC adopted the 2008 AELUP to outline land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent these are not already devoted to incompatible use. The AELUP provides land use policies in AELUP Section 3 that govern noise, safety and height. As set forth above, the proposed project is consistent with AELUP noise, safety standards and building heights. C. AELUP Section 2.1.3 permits ALUC to utilize criteria for protecting aircraft traffic patterns at individual airports which may differ from those contained in FAR Part 77 should evidence of health, welfare, or air safety surface sufficient to justify such an action. The Council considered the FAA No Hazards Determination, proposed relevant project conditions and AELUP standards and finds the proposed project does not present a health, welfare or air safety problem to warrant an inconsistency finding. The City Council finds the ALUC's belief that the proposed project was inconsistent is not based on substantial evidence that was introduced, commented on, or identified in support of the incompatibility finding. D. The Santa Ana General Plan Noise Element additionally specifies that residential development in the Airport Area be outside of the 65 dBA CNEL noise contour and requires residential developers to notify purchasers or tenants of aircraft overflight and noise. The proposed project is outside the 65 dBA and prospective tenants will be notified in writing and the property will be posted. The proposed project is consistent with these policies. Resolution No. 2016 -XXX Page 8 of 8 75A -222 The attached ordinance addresses Recommended Action 2 on the Request for Council staff report: 2. Adopt an ordinance approving Amendment Application No. 2014 -04 for Specific Development No. 88 (SD -88). EXHIBIT G 75A -223 75A -224 ORDINANCE NO. NS- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REZONING THE HERITAGE PROPERTY LOCATED AT 2001 EAST DYER ROAD FROM LIGHT INDUSTRIAL (M -1) TO SPECIFIC DEVELOPMENT NO. 88 (SD -88) (AA NO. 2014 -04) AND ADOPTING SPECIFIC DEVELOPMENT NO. 88 (SD -88) FOR SAID PROPERTY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana does hereby find, determine and declare as follows: A. Amendment Application No. 2014 -04 has been filed with the City of Santa Ana to change the zoning district designation of certain real property located at 2001 East Dyer Road from Light Industrial (M -1) to Specific Development No. 88 (SD -88), The Specific Development No. 88 zoning district (SD -88) would allow the development of The Heritage mixed -use development project, which would include 1,221 apartment homes, 12,675 square feet of retail commercial space, and 5,415 square feet of restaurant space on an 18.84 acre parcel of land. B. The Planning Commission of the City of Santa Ana held a duly noticed public hearing on October 12, 2015, on Amendment Application No. 2014 -04 and decided to recommend that the City Council adopt an ordinance approving Amendment Application No. 2014 -04, which is consistent with the General Plan, as amended by General Plan Amendment No. 2015 -03. C. This City Council, prior to taking action on this ordinance, held a duly noticed public hearing on February 2, 2016, D. The City Council also adopts as findings all facts presented in the Request for Council Action dated February 2, 2016 accompanying this matter. E. For these reasons, and each of them, Amendment Application No. 2014 -04 is hereby found and determined to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare. 75A -225 Section 2. The City Council has reviewed and considered the information contained in Final Environmental Impact Report No. 2015 -01 prepared with respect to this project. The City Council has, as a result of its consideration of the record as a whole 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, Final Environmental Impact Report No. 2015 -01 meets all requirements of CEQA. Section 3. The real property located at 2001 East Dyer Road in Santa Ana is hereby reclassified from Light Industrial (M -1) to Specific Development No. 88 (SD -88). An amended Sectional District Map, showing the above described change in use district designation, is hereby approved and attached hereto as Exhibit A and incorporated by this reference as though fully set forth herein. Section 4. Specific Development No. 88 (SD -88) attached hereto as Exhibit B and incorporated by this reference as though fully set forth herein is approved and adopted in its entirety. Section 5. This ordinance shall not be effective unless and until Resolution No. 2015- (FEIR No. 2015 -01; GPA No. 2015 -03; and, VTTM No. 2015 -03) and Ordinance No. 2015- (Development Agreement No. 2015 -03) are adopted and become effective. If said resolution and ordinance are for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this ordinance shall be null and void and have no further force and effect. Section 6. 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 _J_ day of 75A -226 2016. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By:4 ` C..- Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on , 2016, and that said ordinance was published in accordance with the Charter of the City of Santa Ana, Ml Clerk of the Council City of Santa Ana 75A -227 Exhibit A Sectional District Map 75A -228 Santa Ana Zoning Ooslgnations I Description o Feet 5 oo EXHIBIT A ^` 75A -229 - Al General Agricultural OT DowntoAm RS Suburban Aparlment C1 Communitycommemial GC Government Center RE Residential Estate CI -MD Community Commercial - Museum District M1 Light industrial so Spaclfic Devalopmam 02 General Cnmmercial M2 Heavy lndusual SP Specific Plan Cd Planned Shopping Center 0 Open Space N Transit Village 05 Arterial Commercial p Professional UC Urban Center CDR CoMdor R1 Single - Family Residence UNI Urban Neighborhood OR Commercial Residential R2 1Wo- family Residence UN2 Urban Nalghborhood2 CSM South Main Street Commercial District R3 MuliPle -P amity Residence o Feet 5 oo EXHIBIT A ^` 75A -229 Fir. Specific Development No. 88 (SD -88) 75A -230 SPECIFIC DEVELOPMENT PLAN NO, 88 The heritage SECTION I — APPLICABILITY OF ORDINANCE The Specific Development zoning district No, 88 (SD -88) for The Heritage project site is authorized by Chapter 41, Division 26 Section 41 -593 et seq. of the Santa Ana Municipal Code. SD No. 88 contains the specific standards and regulations contained in the residential and commercial districts, as herein amended, for the purpose of establishing land use regulations and standards. All other applicable chapters, articles, and sections of the Santa Ana Municipal Code are in effect unless superseded by regulations contained in this ordinance. SECTION 2 — PURPOSE The Specific Development Plan No. 88 for The Heritage mixed -use development consists of standards and regulations established for the purpose of protecting the health, safety, and general welfare of the people of the City of Santa Ana by promoting and enhancing the value of property and encouraging the orderly development of the property. The Heritage Mixed Use Specific Development Plan No. 88 (SD -88) sets forth the development and design critena for a development consisting of approximately 18.84 acres. The purpose of this specific development plan is to permit flexibility in site planning and design to respond to market conditions while assuring high quality development. Specific Development Plan No. SD -88 specifically establishes for the property the following: • Permitted uses. Development standards, including building height limits, required setbacks, parking requirements, landscaping provisions and enforcement policies. * Public Park requirements • Maximum development intensity. Objective The objectives of The Heritage mixed -use specific development plan include provision of the following: 1, Development of a mixed -use project within a major freeway corridor, 2. Promotion of the City's image as a regional activity center. 3. Pedestrian access between commercial uses and residential neighborhoods which are in close proximity. EXHIBIT B Page 1. of 6 75A -231 4. A clean and safe environment for the City's residents, workers and visitors. 5. Pedestrian friendly and walkable streets between the residential, commercial and office uses, thereby reducing the use of vehicles. 6. A visually harmonious development as viewed both internally and externally. 7. Flexibility in development in response to market conditions while achieving overall City and community goals. SECTION 3 — Uses permitted in Specific Development No. 88 The following uses are permitted in the SD -88 district: (a) Multiple - family dwellings (b) Live /work lofts (c) Retail and service uses (d) Restaurants, cafes and eating establishments (e) Office uses (f) Other uses as deemed compatible by the Planning Manager or designee SECTION 4 — Uses subject to a conditional use permit in Specific Development No. 88 (a) Establishments open at any time between the hours of 12:00 a.m. and 7:00 a.m. (b) Establishments selling alcoholic beverages (c) Laundromats SECTION 5 — Maximum permitted building intensity The maximum authorized building intensity for The Heritage is 2,209,227 gross square feet (including the parking garages) or 1,495,301 square feet (exclusive of the parking garages) for the mixture of uses in the project. The maximum number of residential units for the project is 1,221. The maximum allowable office area is 56,000 gross square feet. The maximum square footage for the retail and restaurant components is limited to 18,090 gross square feet. SECTION 6 — Minimum lot area in Specific Development No. 88 Developable lots for the project shall have a minimum lot area of 1.66 acres. Page 2 of 6 75A -232 SECTION 7 — Minimum street frontage in Specific Development No. 88 Developable lots shall have a minimum street frontage of at least 200 feet. SECTION 8 — Building height in Specific Development No. 88 No stricture shall exceed 100 feet in height, as measured from the lowest adjacent grade of a structure to the top of the structure. SECTION 9 -- Lot coverage in Specific Development No. 88 No more than 60 percent of the lot shall be covered by structures. SECTION 10 — Development standards in Specific Development No. 88 The Heritage development shall be built as shown on the approved project plans included as attachments to the SD. The plans shall govern in the event there is a conflict between the SD with the project plans. In addition, the following standards are applicable to the project: (a) Setbacks. (1) A minimum setback of 20 feet shall be provided between the property line and buildings an Redhill Avenue (2) A minimum setback of 12 feet shall be provided between the property line and buildings on Dyer Road. (3) A minimum setback of 10 feet shall be provided along the northern and western internal property lines (4) A minimum 10 foot setback shall be provided the property line and buildings fronting an interior street (b) Parking and Circulation. The minimum off - street parking requirements for the project are as follows: 1) A total of 1.71 parking spaces per unit 2) One guest space for every 10 unit 3) One space per 200 square feet for retail and restaurant uses 4) One space per 550 square feet for office uses (c) Pedestrian Walkways and Open Space. The project will provide a public park, trails and similar open spaces at a minimum of six acres. The Pedestrian pascos and walkways shall be provided as shown on approved plan. Page 3 of 6 75A -233 (d) Walls /Fences. A solid block wall with a minimum height of eight feet shall be constructed along the north and west property lines. (e) Landscaping Detailed landscaping plans shall be submitted to and be approved by the City of Santa Ana Planning Division prior to issuance of a building permit and installed as required in the approved phasing plan. The landscape plan shall include approximately 31 percent (315,456 square feet) of open space (courtyards, common area amenities, roof terraces and perimeter plazas and open space) within the project site including the Central Park with an outdoor theatre and putting green and Par Course /Walking Trail located along the northerly end of the site. Private open space recreation and amenities for residents shall include a resort style saltwater pool and spa, private cabanas, fire pits, dog park with washing stations, outdoor barbeque and lounges, fitness area, community center with billiards, shuffleboard, table tennis, kitchen demonstration area for cooking classes and a screening room, tennis and basketball courts and children's play area. Each building shall have a common area rooftop deck with outdoor kitchen and seating areas. (f) Architectural and Design Features. (1) Exterior materials. Exterior materials and finishes for the project shall comply with the approved materials board submitted for the project, All trash enclosures and similar ancillary structures shall match the texture, material and color of the building. (2) Hardsca ee materials. Enhanced paving materials shall be installed at the driveway entrances, the project main entrance and the public park area. The actual paving materials shall be approved by the Planning Division. (3) Lighting standards /fixtures. The light fixtures are to integrate design elements of the building and landscape architecture. Lighting is to be designed to confine the direct rays of the artificial lighting within the boundaries of the development. Specifications of light standards /fixtures and photometrics plan shall be submitted to Planning Division for approval. (4) Gateway element. A monument or similar design feature identifying an entry point or gateway into Santa Ana shall be installed. Page 4 of 6 75A -234 SECTION 11— Sienage standards in Specific Development No. 88 Lots in the SD No. 88 zoning district shall comply with the following standards: (a) Signage shall comply with the standards set forth in sections 41 -850 through 41 -1000 of the SAMC, with the exception of the standards identified below. (b) A comprehensive sign program shall be submitted for review and approval by the Planning Division. The sign program may include creative signage where the sign proposal is not consistent with existing Code provided it is designed to complement the form and function of the building and contributes to the aesthetics of the project. SECTION 12 — Landscape standards for Specific Development No. 88 In the SD No. 88 zoning district, all yards shall be landscaped. The site shall comply with the landscape plans included as an exhibit to the SD. In addition, the landscape plans shall comply with the following minimum requirements: (a) Front /side yard facing a street: (1) Two 24 -inch box canopy trees. (2) All trees shall be double - staked. (3) Six five - gallon size shrubs and 10 one - gallon size herbaceous peretmials /shrubs as a foundation planting. (4) Turf or acceptable dry climate ground cover: i. Turf shall be drought tolerant variety and planted as sod or hydroseed. ii. Ground cover shall be well- rooted cuttings from flats and planted at appropriate spacing for that particular plant material. (b) Irrigation systems: (1) A pop -up sprinkler type irrigation system shall be provided for all yards (2) The use of "xeriphytic" or dry climate type plant materials is encouraged. Irrigation systems may require special fittings to properly water dry climate plantings. Page 5 of 6 75A -235 (c) Screening: (1) All meters shall be appropriately screened from public view with trellis work and vines or a hedge type shrub or they shall be incorporated into the stricture. (2) Any enclosed stricture for utilities must not encroach into any required setback. (d) Maintenance: (1) All plant material shall be maintained per section 41 -609 of the Santa Ana Municipal Code. Page 6 of 6 75A -236 The attached ordinance addresses Recommended Action 4 on the Request for Council staff report: 4. Adopt an ordinance approving the Development Agreement No. 2015 -03 as amended. EXHIBIT H 75A -237 75A -238 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING A DEVELOPMENT AGREEMENT FOR THE PROPERTY LOCATED AT 2001 EAST DYER ROAD, BETWEEN THE CITY OF SANTA ANA AND HERITAGE VILLAGE OC, A DELAWARE CORPORATION THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. This Development Agreement came before the Planning Commission for a duly noticed public hearing on October 12, 2015, At that hearing, the Planning Commission recommended that the City Council approve said Development Agreement. D. Entering into this Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of The Heritage to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. E. The project and the use that the owner proposes in connection with the property have been extensively reviewed and considered by the City, and such proposed development and use have been found to accommodate the City's recommendations and suggestions in order to protect the public's interest to enhance the desirability of such proposed development and use. The terms and conditions of this Development Agreement have been found to be fair, just and reasonable, and the City has concluded that the pursuit of the Project will serve the interests of the City. F. The City Council, prior to taking action on this ordinance, held a duly noticed public hearing on February 2, 2016. G. Final Environmental Impact Report No. 2015 -01, including the Findings of Fact, Statement of Overriding Considerations, and Mitigation Monitoring Program, have Ordinanoe No. NS -XXX Page 1 of 4 75A -239 been prepared and certified by this City Council by resolution simultaneously with the introduction of this ordinance. H. The proposed project will not adversely affect the General Plan, as amended by General Plan Amendment No. 2015 -03, as is expressly set forth in the Request for Council Action dated February 2, 2016, together with all supporting documents, including but not limited to, proposed resolutions, which are incorporated herein by this reference. Section 2. The Development Agreement, a true and correct copy of which is attached hereto as Exhibit A and incorporated herein by this reference, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City with such non - substantive changes as may be authorized by the City Manager and City Attorney. The Clerk of the Council is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. Section 3. This ordinance shall not be effective unless and until Resolution No. 2015- (FEIR No. 2015 -01; GPA No, 2015 -03; and, VTTM No. 2015 -03) and Ordinance No. 2015- (AA No. 2014 -04) are adopted and become effective. If said resolution and ordinance are for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this ordinance shall be null and void and have no further force and effect. Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of _ �, 2016. Sonia R. Carvalho City Attorney r Lisa Storck Assistant City Attorney Miguel A. Pulido Mayor 75A -240 Ordinance No. NS -XXX Page 2 of 4 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 , 2016 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 -241 Ordinance No, NS -XXX Page 3 of 4 EXHIBIT A DEVELOPMENT AGREEMENT Ordinance No. NS -XXX Page 4 of 4 75A -242 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code §§ 6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M -30 P.O. Box 1988 Santa Ana, California 92702 DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and HERITAGE VILLAGE OC, A DELAWARE CORPORATION Dated: FEBRUARY 2, 2016 75A -243 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND HERITAGE VILLAGE OC, a Delaware corporation This DEVELOPMENT AGREEMENT is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ( "City ") and Heritage Village OC, a Delaware corporation ( "Owner"). The City and Owner are referred to jointly within this Development Agreement as the "Parties' and individually as a "Party." RECITALS. The Development Agreement is entered into with reference to the following facts: 1.1 The Property. The real property which is the subject of this Development Agreement is located at 2001 East Dyer Road in Santa Ana, California ( "Property "). The Property is more particularly described in Exhibits A and B to this Development Agreement. The Property is an 18.84 acre parcel that is located at the northwesterly corner of East Dyer Road and Red Hill Avenue. The property contains a single building approximately 355,000 square feet in size that was constructed in 1972. The building is currently occupied by a variety of uses, including a data center that is occupying approximately 10,000 square feet, and various temporary uses utilizing a small portion of the existing warehouse space. Approximately 430 parking spaces are currently on -site. Regional access to the project site is generally provided via State Route 55 at the Dyer Road exit. Access to the project site is provided by Red Hill Avenue and Dyer Road, the latter of which becomes Barranca Parkway in the City of Irvine. The project site is located within the City of Santa Ana limits; however it is adjacent to the Cities of Irvine and Tustin. Areas across from Red Hill Avenue (to the east) are within the City of Tustin and are part of the former Tustin Marine Corps Air Station, now known as the Tustin Legacy. Areas across from Dyer Road (to the south) are in the City of Irvine within the Irvine Business Complex. 1.2 Purpose of this Development Agreement. (a) The purpose of this Development Agreement is to facilitate the development of the Property. (b) Owner's proposed project would redevelop the project site to provide three mixed used buildings that would provide 1,221 multi- family apartments, 12,675 square feet of retail commercial space and 5,415 square feet of restaurant space. The existing 366,000 square foot office /warehouse building would be reduced in size by removing the warehouse portion of the structure to provide a two- 75A =244 story 56,000 square foot office building and a 108 space surface parking lot. The exterior of the office building would be renovated to be consistent with the proposed architectural design of the new mixed -use buildings. The existing office portion of the structure provides 36,000 square feet of employee generating space and 20,000 square feet of data center use that contains only computer equipment. (c) The residential units would range in size from 512 square foot studios to 1,290 square foot one - bedroom and two - bedroom units. Three parking structures would also be developed, one structure for each mixed -use building. The proposed project includes both public and private (for residents) open space and recreational facilities on the project site. A 1.26 acre public central park, including various amenities, would be developed and would connect to open space areas along the northern and eastern boundaries. In addition, approximately 327,302 square feet of private open space, as well as private recreation amenities would be provided for residents. 1.3 Code Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing development certainty for both the City and Owner in the development process. City enters into this Development Agreement pursuant to the provisions of the Government Code and applicable City policies. The Parties acknowledge: (a) This Development Agreement is intended to assure adequate public facilities at the time of development. (b) This Development Agreement is intended to assure development in accordance with City's General Plan, and any applicable Specific Plans. (c) This Development Agreement will permit achievement of goals and objectives as reflected in the City's General Plan, and any and all applicable Specific Plans. (d) Owner is required by existing City regulations to provide mitigation for certain identified impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (e) This Development Agreement will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. 75A -245 (f) Many of the extraordinary and significant benefits identified as consideration to City for entering into this Development Agreement are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1.4 Owner. Owner represents and warrants that it has a legal or equitable interest in the Property. 1.5 Interest of Owner. Owner represents that it has approved this Development Agreement and is authorized to enter into this Development Agreement, 1.6 Public Hearings. The Development Agreement was the subject of the following public hearings: (a) Planning Commission. On October 12, 2015, the Planning Commission, after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's application for this Development Agreement and the environmental documentation evaluating the potential impacts of the proposed project. (b) City Council. On February 2, 2016, the City Council, after providing notice as required by law, held a public hearing to consider Owner's application for this Development Agreement and the proposed project. (c) Environmental Analysis. Before approving this Development Agreement, the Planning Commission and the City Council reviewed the Environmental Impact Report, and the City Council certified Final Environmental Impact Report No. 2015 -01. 1.7 City Council Findings, The City Council finds that this Development Agreement is consistent with the General Plan, as amended by General Plan Amendment No. 2015 -03, applicable specific plan(s), applicable zoning regulations, and all other applicable ordinances, plans, policies and regulations of the City. 1.8 City Ordinance. On February 2, 2016, the City Council adopted Ordinance No. NS- approving this Development Agreement. That ordinance becomes effective thirty (30) days after the date of adoption. 2. DEFINITIONS. In this Development Agreement, unless the context otherwise requires: 75A'246 2.1 "Applicable Rules" means all rules, regulations, ordinances and official plans and policies of the City in force as of the Effective Date, as included within the Santa Ana Municipal Code ( "SAMC "), Specific Development Plan No. 88 as adopted by Amendment Application No. 2014 -04, this Development Agreement and the Entitlements, as defined below. 2.2 "Effective Date" means March 17, 2016, the date upon which the ordinance approving the Development Agreement becomes effective. 2.3 "Entitlements" means this Development Agreement No. 2015 -03, Final Environmental Impact Report No. 2015 -01, General Plan Amendment No. 2015 -03, Vesting Tentative Tract Map No. 2015 -03, Amendment Application No. 2014 -04, and any changes to these to which Owner has consented in writing. 2.4 "Owner" means Heritage Village OC, a California limited liability company. 2.5 "Project" is the development on the Property of a 1,221 -unit multiple family residential apartment development, 12,675 square feet of retail commercial space, and 5,415 square feet of restaurant space, as generally set forth in the Entitlements. 2.6 "Property" means the real property described in Exhibit A and referred to in Exhibit B. 2.7 "Public Art" is defined in Section 5.1.7. 2.8 "Public Art Fee" is defined in Section 5.1.7. 2.9 "Public Art Plan" is set forth in Exhibit C to this Development Agreement 2.10 "Reserved Powers" means the rights and authority excepted from this Development Agreement's restrictions on the City's police powers and which are instead reserved to the City. The Reserved Powers include the power to enact and implement rules, regulations, ordinances and policies after the Effective Date that are not in conflict with the Applicable Rules or that may be in conflict with the Applicable Rules, but: (a) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health and /or safety; (b) are Uniform Codes; (c) are required to comply with mandates under state and federal laws, rules and regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; or (d) relate to increases in development impact fees occurring after the Effective Date. 2.11 "Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations which are based on recommendations of a multi- state professional organization and become applicable throughout the 75k -247 City, such as, but not limited to, the California Building Code, the California Electrical Code, the California Mechanical Code, or the California Fire Code (including those amendments to the promulgated Uniform Codes which reflect local modification to implement the published recommendations of the multi -state organization and which are applicable City - wide). 2.12 "Utility Release" means the formal approval of the City Building Department, following its inspection, that residential unit(s) may be released for initial connection to the electrical power system, water service system, gas service system, and sanitary sewer system. Utility Release(s) do not include temporary utility service provided to any structure during construction. 3. EXHIBITS. The following documents referred to in this Development Agreement are attached to this Development Agreement and are identified as follows: Exhibit Designation Description Referred to in Section A Property Legal Description 1.1.2.6 B Property Graphical Description 1.1 C Public Art Plan _ —,2.9, 5.1.7 4, GENERAL PROVISIONS. 4.1 Term of Development Agreement ( "Term "). This Development Agreement shall have a six (6) year term beginning on the Effective Date of March 17, 2016, and ending on March 17, 2022. The Term shall be automatically extended for an additional three (3) years if Phase 1 and Phase 2 are deemed complete. In order to be deemed complete, all permits must have been finalized, utilities should have been released and a Certificate of Compliance must have been issued for Phase 1 and Phase 2. If a building permit has not been issued for Phase 3 prior to the end of the initial 6 year term of the Development Agreement, the architectural, fagade treatment and landscaping plans for Phase 3 shall be subject to Staff level design review prior to issuance of the building permit for Phase 3 to determine whether the exterior design needs any updating. Should updates be required by the Executive Director, the Owner shall prepare plans accordingly, which may be administratively approved by the Director. The Executive Director shall also have the authority to approve any necessary minor modifications to the project requested at the time of the Term extension. Any dispute pertaining to any extension shall be 75A =248 brought before the Planning Commission for review and City Council for final determination. 4.2 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this Development Agreement; provided, however, the rights of Owner under this Development Agreement may not be transferred or assigned unless the written consent of the City Council is first obtained, and any transfer or assignment of the rights under this Development Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this Development Agreement, if the City grants written consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer of the rights under this Development Agreement shall be wholly void and of no force and effect unless such written consent thereto be obtained from the City Council. A transfer or assignment of the rights under this Development Agreement without the consent of the City Council shall not relieve Owner of any accrued duty, obligation or liability to City. No consent shall be required for sale of units to condominium unit buyers. During the term of this Development Agreement, any approved assignee or transferee of the rights under this Development Agreement shall observe and perform all of the duties and obligations of Owner contained in this Development Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this Development Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Development Agreement. Upon assignment or transfer of the rights of Owner under this Development Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. Should the Project be developed as or later converted to condominiums, individual condominium unit buyers shall not have any liability or obligation pursuant to this Development Agreement, 4.2.1 Permitted Assignments. The prohibition against transfer of ownership of the Property as defined in section 4.2 above, shall not apply to, and the City hereby consents to the following: i. Transfers to associations, including limited partnerships, limited liability companies, or joint ventures with other entities for the 75A -249 purpose of performing the Owner's obligations under this Agreement, provided Owner may be in common control with the transferee or retains primary operational and managerial control of the transferee, so long as the Owner retains at least 51 % interest at all times. b. Easements or temporary permits to facilitate the development of the Property. c. Deeds of trust or other financing documents executed for the purpose of securing loans to Owner made to finance development of the Property, and transfers to any person or entity pursuant to a foreclosure or deed in lieu of foreclosure of such deed of trust or other, similar financing documents and any subsequent transfer by any such person or entity. 4.3 Amendment or Cancellation of Development Agreement. This Development Agreement may be amended from time to time or cancelled by the mutual consent of the Parties, but only in the manner required by Government Code Section 65868. 4.4 Enforcement. Notwithstanding Government Code Section 65865.4, this Development Agreement is enforceable by either Party in any manner provided by law. The remedies provided in Section 7.4 shall not include, and City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this Development Agreement. 4.5 Indemnification by Owner. Owner agrees to and shall indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from liability for damages, attorney's fees, restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from construction activities with respect to the Project by the Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf. Owner further agrees to indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from any Litigation, as hereinafter defined. For purposes of this paragraph, "Litigation" shall mean any lawsuit, action or cross - action, challenging the validity of this transaction, the Project as defined in Section 2.5, or any portion thereof or the rights of either party hereunder and /or the rights of either party to engage in the acts and transactions contemplated by this Development Agreement. Notwithstanding any other provision of this Development Agreement, this indemnity and duty to defend shall be limited as follows; 75A- -250 (a) In the event of any Litigation the parties agree to affirmatively cooperate in defending said action. (b) Owner shall have approval of any settlement if, (i) it will affect Owner's project, or (ii) Owner will be required to pay (or reimburse) any amounts (regardless of type) in connection with the settlement (including attorney's fees and costs). (i) If City determines to settle over Owner's objections, then Owner may upon thirty (30) days written notice terminate defense of the action. (ii) If City rejects a settlement offer that Owner deems reasonable, then Owner may upon thirty (30) days written notice terminate defense of the action. (c) Owner shall be allowed to terminate its defense if it determines to abandon defense of its project application; provided, however, that in such circumstance Owner shall be solely liable for award, if any, of costs or attorney's fees to plaintiff /petitioner incurred prior to the effective date of termination. 4.6 Binding Effect of Development Agreement. To the extent not otherwise provided in Section 4.2 of this Development Agreement, the burdens of this Development Agreement bind, and the benefits of the Development Agreement inure, to the parties' successors in interest, transferees and assigns. 4.7 Relationship of the Parties. The contractual relationship between City and Owner arising out of this Development Agreement is one of independent contractor and not agency. This Development Agreement does not create any third party beneficiary rights. 4.8 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this Development Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: If to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M -31 P.O. Box 1988 Santa Ana, California 92702 75A -251 TWA City Attorney, City of Santa Ana 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, California 92702 If to Owner, to: Heritage Village OC 1945 Port Chelsea Place Newport Beach, CA 92660 Attention: General Counsel A Party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above, If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty - four (24) hours after the time set forth on the transmission report issued by the transmitting telefacsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 5.1 City Obligations. In consideration for Owner entering into this Development Agreement and performing its obligations hereunder, and in order to effectuate the purposes and intentions set forth in this Development Agreement and the Development Agreement Act, the City hereby agrees during the Term as follows: 5.1.1 Vested Right to Develop. Owner is hereby granted the vested right to develop the Project subject to the terms and conditions of the Applicable Rules and the Reserved Powers. 5.1.2 Non - Application of Changes in Applicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in the General Plan, zoning ordinance, subdivision ordinance, or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of ordinance, initiative, referendum, resolution, motion, policy, 75A9252 order or moratorium, initiated or instituted for any reason whatsoever, however denominated, and adopted by the City Council, Planning Commission or any City Agency, or by the electorate, as the case may be, which would, absent this Development Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules, shall not be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or are otherwise expressly allowed by this Development Agreement. In the event that state or federal laws or regulations enacted after this Development Agreement has been entered into, prevent or preclude compliance with one or more provisions of this Development Agreement, such provisions of this Development Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 5.1.3 Agreed Changes and Other Reserved Powers. This Development Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies In conflict with the Applicable Rules where such additional rules, regulations, ordinances and officially adopted plans and policies: (a) are mutually agreed to in writing by Owner and the City, or (b) result from the Reserved Powers. 5.1.4 Subsequent Development Approvals. The City shall require Owner to obtain only those Subsequent Development Approvals that are required by the Applicable Rules or the Reserved Powers. City agrees that it shall condition any Subsequent Development Approvals based only on the Applicable Rules and /or Reserved Powers. 5.1.5 Moratoria. In the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate, amount, timing, sequencing, or phasing of the development or construction of the Project on all or any part of the Property, City agrees that, unless required by applicable state or federal law, such ordinance, resolution or other measure shall not apply to the Project, Property or this Development Agreement, unless such changes are adopted pursuant to the City's exercise of its Reserved Powers or other applicable provision of this Development Agreement. 75AIL253 51.6 Timing of Development. The parties acknowledge that Owner cannot at this time predict when or if the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465 that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that, except as provided in and subject to Section 5.8, Owner shall have the right to develop the Property at such rate and at such time as Owner deems appropriate within the exercise of its subjective business judgment. 5.1.7 Development, Construction, and Completion of Public Art. Owner shall include within the Project a single or grouped permanent work of public art consistent with the Public Art Plan (collectively, "Public Art "), attached herewith and incorporated herein as Exhibit C, at a cost of not less than one half of 1% of the total construction costs which is approximately One Million Three Hundred Twelve Thousand Dollars ($1 ,312,000) (the "Public Art Fee "), The actual amount of the Public Art Fee shall be determined at building plan check submittal. 5.2 Exclusion from Existing Rules, Regulations and Policies. (a) Pursuant to Government Code Section 65866 and Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, City retains the right to enact police power regulations on matters not covered by Section 5.1 of this Development Agreement, including without limitation: (i) Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with Section 5.1 of this Development Agreement. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non - conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non - conflicting laws and regulations include the following: 75A "254 • Taxes, assessments, fees and charges, except as otherwise specifically provided in this Development Agreement; • Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; • Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city -wide basis; and Procedural rules of general City -wide application 5.3 Construction Standards and Specifications. The construction standards (e.g., the Uniform Codes) and specifications for all Project construction shall be subject to applicable construction standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 FAA and ALUC Approval. Owner shall obtain and maintain, during the term of this Development Agreement, any and all necessary approvals from the Federal Aviation Administration (FAA) and the Airport Land Use Commission (ALUC) for the Project. Should such approvals lapse and not be reinstated or reapproved prior to the issuance of the first building permit, the City shall have the right to terminate this Development Agreement, 5.4.1 Avigation Easement. The Owner shall, prior to issuance of the first building permit for the Project, execute an avigation easement in a form approved by the City Attorney, which shall be recorded with the Orange County Recorder's Office. The avigation easement shall prohibit any and all claims, actions or lawsuits of any kind or type for nuisance or interference with use and enjoyment of the underlying Property or the Project, including but not limited to noise, sound, vibration, fumes, fuel particles, dust, discomfort or other environmental effects incident to aircraft operations as well as any inconvenience or annoyances caused by the operations of the John Wayne Airport (SNA). The avigation easement shall grant the right to enter or penetrate into or transmit through the airspace above, on or in the vicinity of the Property for the unobstructed use, passage or operation of all types of aircraft and the right to create or generate all things and consequences to the Property that may be, or may be alleged to be, incident to or resulting from the use of said airspace and any and all related aircraft and airport operation. The City shall be the benefited party in the avigation easement, but said easement shall be assignable by the City to a third party, including but not limited to John Wayne Airport (SNA), without consent of Owner. 75A-255 5.5 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including, but not limited to, fees and charges for applications, processing, inspections, plan review, plan processing, and /or environmental review, which are existing or may be revised or adopted during the term of this Development Agreement, shall apply to the development of the Property. 5.6 Amendments or Additions to Citywide Fee Programs. This Development Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees ") adopted by the City after the effective date of this Development Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Project impacts which were analyzed in the environmental impact report prepared for the Project, or (b) duplicate any project design features conditions of approval, agreements, or mitigation measures contained in this Development Agreement. 5.7 Open Space. All common area open space on Lots A and B of Vesting Tentative Tract Map No. 17962 must be built in the first phase. 5.8 Phasing of Project. The parties agree and acknowledge that the Project may be built in three (3) phases, but that, except as otherwise expressly stated herein, all conditions and mitigation measures shall be implemented as part of the initial phase; provided, however that Owner may propose to delay to the second phase on -site conditions (e.g., sidewalks) that could be damaged by future construction. Additionally, Owner shall build all private streets and the central park in the first phase. Prior to issuance of the first building permit for the Project, Owner shall submit a proposed Phasing Plan to the City, for review and approval by the Executive Director of the Planning and Building Agency. The proposed Phasing Plan shall contain those items Owner deems necessary, but shall include the timing for first and second phase construction and interim site improvements (i.e., landscaping, internal circulation) between the phases. The approved Phasing Plan must be implemented within six (6) months after completion of the first phase (i.e., issuance of first Utility Release). Generally, the phases shall proceed as follows: Phase I The first phase of the project would consist of 335 apartment homes within two five -story apartment buildings wrapping a parking structure. This ' 75A- -256 phase would be built on the south side of the parcel facing Dyer Road. Five different unit types and nine different floor plans are proposed for the project, with the units ranging from studio to three bedroom units. This phase also includes approximately 9,700 square feet of commercial and restaurant space. The units would be wrapped around a 6'/2 -level garage that will contain 646 parking spaces, with another 18 spaces on the private drive. Parking is provided at a rate of approximately 1.9 parking stalls per unit, which includes guest and commercial parking. Also to be built within this phase is a two -story, 56,000 square foot office building that will house the current data center tenant as well as other future office uses. A total of 102 parking spaces have been allocated to this component of the project. Phase 2 The second phase of the project would consist of 403 apartment units situated within two five -story buildings wrapping a parking garage. This phase would be built on the west side of the parcel with the southern elevation facing Dyer Road. Six different unit types and nine different floor plans are proposed for the project, with units ranging from studio to three bedroom units. In addition, approximately 4,100 square feet of commercial and restaurant space would be incorporated into this phase of the project. The units would be wrapped around a 6 -level garage containing 722 parking spaces, with another 15 spaces to be located on the private drive. Parking for this phase has been provided at a rate of approximately 1.83 parking stalls per unit, which includes guest parking. Phase 3 The third and final phase of the project would consist of 483 apartment homes within three five -story apartment buildings wrapping a parking garage. This phase would be built at the northern area of the parcel, with the eastern elevation facing Redhill Avenue. Six different unit types and nine different floor plans are proposed for the project. The project units would consist of studio, live /work, and one to three bedroom units. The units would be wrapped around a 6 %2 -level garage that would contain 809 parking spaces, with another 21 spaces to be located on the private drive. Parking for this phase has been provided at a rate of approximately 1.72 parking stalls per unit, which includes guest parking. 5.9 Inclusionary Housing. Owner's project qualifies as a "pipeline project" under the amended Housing Opportunity Ordinance (Article XVIII.I of Chapter 41 of the Santa Ana Municipal Code) and shall pay the City an in- lieu fee of $9.35 per square foot of habitable space in order to fulfill the inclusionary housing requirement. Owner may express a preference for how these funds may be used, but the final decision regarding use of the 754 -257 inclusionary housing funds lies solely with the Executive Director of the Community Development Agency. 5.10 Covenants, Conditions, and Restrictions. Prior to the issuance of the first building permit for the Project, Owner shall provide to the City the proposed Covenants, Conditions, and Restrictions ( "CC &R's ") to be recorded against the Property. Those CC &R's must be approved by the Executive Director of the Planning and Building Agency. The City's review and approval of the CC &R's shall be limited to determining inclusion of the following restrictions within the CC &R's: (a) Allocation of responsibility for repair of perimeter walls and common areas, including landscaping, will be specified in the CC &R's in the event of damage. (b) Notice of the urban character of the City and this area, including but not limited to: (i) the permitted uses of the property and buildings in the immediate area of the development; and (ii) the flight path for the airport. (c) The release of the City from all claims which may arise from or relate to the urban character of the City and this area. (d) The need for the approval of the City to any proposed modifications to the provisions of the CC &R's identified in this Section 5.10. 5.11 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of those approvals, and in no event shall such conditions be affected by the termination, cancellation, rescission, revocation, or default or expiration of this Development Agreement (although such conditions must comply with the Applicable Rules), 5.12 Compliance with Governmental Requirements. Owner shall carry out the design, construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisions of the 75A =�258 7 City and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code§ 4450 et seq., and the Unruh Civil Rights Act, Civil Code§ 51 et seq. (collectively, "Governmental Requirements "). ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this Development Agreement, review the extent of good faith substantial compliance by Owner with the terms of this Development Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of this Development Agreement at the periodic review. 6.2 Review Letter. if Owner is found to be in compliance with this Development Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter ") stating that based upon information known or made known to the City Council, the City Planning Commission and /or the Executive Director of the Planning and Building Agency, this Development Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 6.3 Failure to Conduct Annual Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Development Agreement shall not constitute or be asserted by any Party as a breach of this Development Agreement by Owner or City. DEFAULT. 71 Events of Default. Owner is in default under this Development Agreement upon the happening of one or more of the following events or conditions: (a) If a warranty, representation, or statement made or furnished by Owner to the City is false or proves to have been false in any material respect when it was made; (b) A finding and determination made by the City Council following a periodic review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Owner has not complied in good faith with one or more of the terms or conditions of this Development Agreement; (c) Failure to comply with Governmental Requirements; 75x6 -259 (d) Any other event, condition, act, or omission which materially interferes with the intent and objectives of this Development Agreement. 7.2 Procedure upon Default. The following principles and procedures shall be applied in the determination of any Default: (a) Upon the occurrence of default, City shall give Owner (the "defaulting party ") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the manner in which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day cure period without cure, City may terminate or amend this Development Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be cured within said thirty (30) day cure period, City may terminate or amend this Development Agreement in accordance with the procedure adopted by the City should at any time Owner fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. (b) City does not waive any claim of defect in performance by Owner, if on periodic review the City does not propose to modify or terminate this Development Agreement. (c) Nan - performance shall not be excused because of failure of a third person. (d) An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Owner, shall be sufficient to terminate this Development Agreement and a hearing on the matter shall not be required. (e) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Owner. (f) All other remedies at law or in equity which are not inconsistent with the provisions of this Development Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Owner be entitled to any damages against City upon termination of this Development Agreement. 7.4 Institution of Legal Action. In addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any 75A'260 default or breach, to specifically enforce any covenants or agreements set forth in this Development Agreement, or to enjoin any threatened or attempted violation of this Development Agreement; or to obtain any remedies consistent with the purpose of this Development Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 8. MORTGAGEE PROTECTIONS 8.1 Right to Owner /Notice /Multiple Mortgagees. Owner shall have the absolute right to encumber Owner's right, title and interest in, to and under this Development Agreement and the Property pursuant to one or more Mortgages. Because certain portions of the Project may be developed by one or more assignees, the Parties acknowledge and agree that different Mortgages may encumber the Property and that there may be a separate Mortgage in effect with respect to separate parcels within the Property. It is the intention of the Parties that the rights and protections granted in this Section 8 to each Mortgagee shall only apply to the parcels upon which such Mortgagee's Mortgage is a lien (each a "Mortgage Parcel "), and to the rights, privileges and obligations under this Development Agreement relating to such Mortgage Parcel. 8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Owner as provided herein, whenever the City delivers any Notice or demand to Owner with respect to any Breach by Owner under this Development Agreement, and if Owner fails to cure the Breach within the time set forth herein, the City shall deliver to each Mortgagee a copy of such notice or demand accompanied by a writing to the effect that Owner has failed to cure a Breach ( "Mortgagee Notice "); provided that Owner or Mortgagee has provided City with addresses for such purpose. Each such Mortgagee shall (insofar as the rights granted by the City are concerned) have the right, at its option, within thirty (30) days after the receipt of the Mortgagee Notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such Breach and to add the cost thereof to the mortgage debt and the lien of its mortgage; provided, however if the Mortgagee is legally prevented from curing such Breach because of a bankruptcy by the Owner then the thirty (30) day period shall be tolled until such bankruptcy is confirmed or rejected. Nothing contained in this Development Agreement shall be deemed to permit or authorize such Mortgagee to take advantage of Owner's rights hereunder, or any portion thereof, without first having expressly assumed Owner's obligations to the City by written agreement reasonably satisfactory to the City. It is understood that a Mortgagee shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy Owner default which requires title and /or possession of the 75AL261 Property (or portion thereof) if and to the extent any such Mortgagee has within such thirty (30) day period commenced proceedings to obtain title and /or possession and thereafter the Mortgagee diligently pursues such proceedings to completion and cures or remedies the Breach, provided that, in such event, all noncurable Defaults shall be waived. 8.3 Mortgagee Not Obligated Under this Development Agreement. Unless a Mortgagee expressly assumes Owner's Obligations to the City in accordance with Section 8.2, no Mortgagee shall in any way be obligated by the provisions of this Development Agreement, nor shall any covenant or any other provision in this Development Agreement be construed to obligate such Mortgagee. Nothing in this Development Agreement shall be deemed to construe, permit or authorize any such Mortgagee to devote the Mortgage Parcel to any uses or to construct any improvements on the Mortgagee Parcel, other than those uses or improvements provided for or authorized by this Development Agreement. 8.4 No Liability. No Mortgagee shall have any liability beyond its interest in the Mortgage Parcel acquired through enforcement of its Mortgage for the performance or payment of any covenant, liability, warranty or obligation under this Development Agreement. City agrees that it shall look solely to the interests of such Mortgagee in such Mortgage Parcel for payment or discharge of any such covenant, liability, warranty or obligation. 8.5 No Amendment or Termination. This Development Agreement shall not, without the prior written consent of all Mortgagees holding Mortgages on any portion of the Property, be amended to (a) terminate this Development Agreement prior to the expiration of the Term (except as expressly provided above) or (b) change any provision of this Development Agreement which, by its terms, is specifically for the benefit of Mortgagees. No amendment to this Development Agreement affecting the Property or any part thereof, made without the consent of any Mortgagee holding a Mortgage on such Property, or any part thereof, shall be binding upon such Mortgagee or its successors in interest should it become a party hereto. 8.6 Condemnation or Insurance Proceeds. Nothing in this Development Agreement shall impair the rights of any Mortgagee, pursuant to its Mortgage, to receive insurance and /or condemnation proceeds which are otherwise payable to Owner granting such Mortgage. 8.7 Title by Foreclosure. Except as otherwise set forth herein, all of the provisions contained in this Development Agreement applicable to any of the Mortgage Parcel shall be binding on and for the benefit of any person who acquires title to the property, or any part thereof, by foreclosure under a Mortgage or transfer by deed in lieu. 75A =262 8.8 Delegation to Mortgagee. Owner may delegate and /or assign irrevocably to any Mortgagee the non - exclusive authority to exercise any or all of Owner's obligations and /or rights hereunder with respect to the Mortgage Parcel, but no such delegation shall be binding upon the City unless and until either Owner or such Mortgagee shall give to the City a true and correct copy of a written instrument effecting such delegation. Such delegation of authority may be effected by the terms of the Mortgage itself, in which case service upon the other Party of an executed counterpart or conformed copy of said Mortgage, together with written notice specifying the provisions therein which delegates such authority to said Mortgagee, shall be sufficient to give such other Party notice of such delegation. No such delegation or assignment shall relieve the Owner of that Mortgage Parcel of any of its obligations hereunder with respect to such Mortgage Parcel. 8.9 No Obligation to Cure. Nothing herein contained shall require any Mortgagee to cure any default of Owner referred to above. 8.10 Separate Agreement, The City shall, upon request, execute, acknowledge and deliver to each Mortgagee requesting same, an agreement prepared at the sole cost and expense of Owner, in form satisfactory to such Mortgagee and the City, between the City and the Mortgagees, agreeing to all of the provisions hereof, provided Owner pays for all legal and other consulting costs incurred by City in reviewing same. 8.11 Estoppel Certificate. Within thirty (30) days after written request therefore, the City shall execute and deliver to any proposed Mortgagee in connection with its new Mortgage and to such Mortgagee thereafter from time to time an estoppel certificate in form and substance satisfactory to Owner and such Mortgagee ( "Estoppel Certificate "). The City hereby agrees to reasonably cooperate in including in any such Estoppel Certificate from time to time any provision which may reasonably be requested by any proposed Mortgagee for the purpose of implementing the Mortgagee protection provisions contained in this Section 8 and allowing such Mortgagee reasonable means to protect or preserve the lien and security interest of its Mortgage hereunder, clarifying the non - applicability of the provisions of this Development Agreement to such Mortgagee as it relates to parcels other than the Mortgage Parcel, and /or such other terms and provisions as are customarily required by Mortgagees (taking into account the customary requirements of their participants, syndication partners or ratings agencies) in connection with any such financing; provided, however, that no such Estoppel Certificate shall in any way materially adversely affect any rights of the City or increase any obligations of City under this Development Agreement. 75A° -263 8.12 Conflicts. If there is any conflict between this Section 8 and any other provision contained in this Development Agreement, this Section 8 shall control. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall' is mandatory; "may" is permissive. If there is more than one signer of this Development Agreement, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This Development Agreement constitutes the entire understanding and agreement of the Parties with respect to the matters set forth in this Development Agreement. This Development Agreement supersedes all negotiation or previous agreements between the Parties respecting this Development Agreement. All waivers of any provision of this Development Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this Development Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Upon the completion of performance of this Development Agreement or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, California. 9.3 Project as a Private Undertaking. It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Development Agreement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this Development Agreement are part of this Development Agreement. 9.5 Captions. The captions of this Development Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Development Agreement. 9.6 Consent. Where the consent or approval of a Party is required by or necessary under this Development Agreement, the consent or approval shall not be unreasonably withheld. 75A!264 9.7 Covenant of Cooperation. The Parties shall cooperate with and deal with each other in good faith. They will assist each other to the extent needed in the performance of the provisions of this Development Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Development Agreement of which time is an element. 9.9 Force Majeure. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the Party's control. If any such events shall occur, the Term of this Agreement and the time for performance by either Party of any of its obligations hereunder may be extended by the written agreement of the Parties for the period of time that such events prevented such performance, provided that the Term of this Agreement shall not be extended under any circumstances for more than five (5) years.. 9.10 Conflicts of Law. In the event that state or federal laws or regulations enacted after this Development Agreement has been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Development Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Development Agreement. The Parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Development Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state law or regulation upon this Development Agreement, the matter shall be scheduled for hearing before the City Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.11 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Development Agreement. 75A -265 9.12 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Development Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 9.13 Jurisdiction and Venue. Any action at law or in equity arising under this Development Agreement or brought by a Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, and the Parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 9.14 Counterparts. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. 9.15 Recording, The City Clerk shall cause a copy of this Development Agreement to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the effective date of this Development Agreement. 75AINIG IN WITNESS WHEREOF, this Development Agreement has been executed by the City of Santa Ana and by Owner. Dated this ATTEST: day of Maria Huizar, Clerk of the Council APPROVED AS TO FORM: Lisa Storck, Assistant City Attorney 2016. THE CITY OF SANTA ANA David Cavazos, City Manager HERITAGE VILLAGE OC a Delaware corporation By: Title: 75A -267 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On , 2016 before me, a Notary Public in for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and official seal. Signature of Notary Public 75A=268 EXHIBIT A Property Legal Description Orange County Assessor's Parcel Number 75Ai -269 EXHIBIT A LEGAL DESOR1PTION PARCEL 4, AS SHOYm ON CM18IP "B -7• ATI'.A111 E(; RD LOT LANE AL9d^a WIT 97 -043 RECORDED JUNE H, 139A AS INSRUMAINT N0, M—Sdd011 CF OFFeaAL RECOR. s OF OPAHGE 01 CAUFORIHIA. EYEEPt T'1!I POATI,CNS COnP: E(ED T3 THE CITY OF SANTA AN.1 B/ DDA?IT DI RECORDED NJ RE (A. SON AS INSTRUMENT NO 20109012892 ?9 OF OFFICIAL RECORDEE E:(CEPTING ALL OIL, 011, RtOHTS, MLNERAA5, 11114ERAL RIGHTS, NANP.AL CAS NEWS AND OTHTR ry IORGOAPOON'S EY WHATSOEVER NAME I:iHDYW THAT WAY E£'1lTMRI OR HHUER THE PARCEL DF LAND 11ERENAEOVE DESCRIBED, TOOMM WITH DIE P81PMAL PI CHT CF ORLU10, •N:NUI4 OP.ORJNO AND OPEP,AT41C, DERVOP. AND S =CRIMS 101 AND PF41014HO THE SAME FROM SAID LAND OR MY OTHER LAND. BICLUOING THE MONT 10 1 OR DIRESTDTII,4LY DRILL Af10 MINE FR6T1 LAHDH 07NM TRAM NOSE EEREINA00 "E 093ORABEU, 011 OR CAS 'WELLS, 101PIELS APED SHAFTS IPITJ, TMROUCH OR 4CR05E WME SURSURFACE OF He -LJND- HERE PI: IA19' lE°- OE9CRIBEp,- XHfrip- 6!) flGbl- S' 1CN' �4 lFIIPSTOSJic'�OtFDI�'TIUHALTT -` -" - - "` —` " _.... _ ._. OPILLEO YELLS, IUNHEL9 AND SHAFTS UNDER AND WEAM OR BEfCNO WS VMRICR LMRS THEREOF AND TO PEDRILL, RETWIH0, ECUIP, MAINTAIN, REPAIR, DEEPEN AM OPERATE ANY STUCK WILLS OR 61IIIES RDIOUT, HOYIEVEB, THE RIGHT TO OP.ILL, LIINw STORE, EXPLORE OF OPERATE MROt1.4 FBE SURFACE G: THE UPPER 567 FEET OF THE SUBSURFACE OF THE LAND HExWIABI DESCRIBED, AC RF. MISD BY THE IRVB11" COMPANY IN OPEC RECORDED OCTOBER 14, 1377 IN POOR 14415, PACE 995 OF OFFICIAL RECORDS. *10 THE IRVINE I6@USPIAL COMPLEX IN A DEOO RECORDED OECEIAPER 32, 1172 III P:Ln 10423. PAGE ?2I BF CPROAL R.CORDE. ALSO EY.CEPTH'i FROM THAT PORTOPI IMIU0 :0 YC(nTt'I PARCEL 4, Ai $KM OR A MAP AILED IN ROC. 46, PACE 34 OF PARCEL MAPS, DI [HE OFFICE OF TAE CGUHT'T RECORDER OF ORANGE COUNTY, CAUFGRNIA, ANY ARID ALL RAISE RIOMS DR IPtTFRBSTO III MATER P.ISHT-. AND ANY AND ALL CEADMERMAL RIOHT5 OP IrITENEST5 III CEMEPJAAI RIGHTS. NO AU.nu FIMY ACQUIRED BY CRABTOP, Al-10 OYRIER OR USED 9Y CU TOR B CCI,PJ C,nOH 'MTH OR YIITH RESPECT TO THE LAPPJ, YIFIETHE.R SAJCH WkT98 RIGHTS SHALL BE RIPARIAN, 0'! cLTINE. APPROPP,IAT'rE, PERCOLATINV. PRESCRIPB'e£ OR CONTRACTUAL, BAIT 44THCUi, HOYEVER, AN RIGHT 10 ENTER UPON THE SIARFWX OF SHE LAN IN ETE EXERCISE OF SUCH RPpHTS, A$ RESERVED B'! THE IR9IPIE OO:IPANY IN GEED PECOR.DED OCTOBER IS, VVS W 9UOY: 1388., PAGE 134 OF OFFICIAL RECORD, 75A -270 Property Site Plan 75A -271 � 75A-272 j ) it |\ w z \ }) �` � (} / | \| §| ® ° - (!w2 ) A (( 75A-272 j ) it EXHIBIT C Public Art Plan 1. The Public Art shall be designed, constructed, and installed by Owner. 2. A Final Design Plan for the Public Art shall be submitted to the Executive Director of the Planning and Building Agency within thirty (30) days prior to the issuance of a Final Certificate of Occupancy for the first unit of the Project. The Executive Director of the Planning and Building Agency shall have sole discretion to approve or deny said Final Design Plan for the Public Art. The Final Design Plan shall (i) identify one (1) or more specific items of Public Art for one (1) or more specific locations and /or application, and (ii) specify the timing of the installation of the Public Art. The installation shall occur no later than 180 days after the first utility release for the Project. Owner shall expend approximately One Million Three Hundred Twelve Thousand Dollars ($1,312,000.00) in total in connection with the Public Art. The actual amount shall be determined at building plan check submittal. 3. The Public Art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, and /or capture or reinforce the unique character of the new place. 4. The Public Art should be constructed using durable materials and finishes, including, but not limited to, stone or metal. 5. The Public Art should be comprised of a single or grouped permanent work(s) at a prime location visible to the public and sited to complement features such as plaza or architectural components so that the Public Art is an integral part of the development site. 6. No Public Art shall include advertising of any type, including, but not limited to, products, services, or businesses. 7. All Public Art shall be properly maintained at all times, be free of any graffiti, and shall not incorporate any flashing or distracting form of illumination. 8. The Owner may assign ownership, maintenance and /or repair responsibilities of the Public Art to one or more Owners' Association(s). 9. All Public Art shall remain on the Property and may not be removed without the approval of the Executive Director of the Planning and Building Agency. 10. Expenses not included in the Public Art Fee: a. Expenses to locate the artist(s) (e.g., airfare for artist interviews, etc.) 754 -273 M i b. Architect and Landscape Architect fees incurred in connection with the Public Work(s) of Art. C. Landscaping around Public Work(s) of Art that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by the artist, and ornamental enhancements. d. Utility fees associated with activating electronic or water generated artwork. e. Lighting elements not integral to the illumination of the Public Art. f. Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. g. Dedication ceremonies, including sculpture unveilings or grand openings. 75A2274 REQUEST FOR COUNCIL/ HOUSING AUTHORITY >; ACTION CITY COUNCIL MEETING DATE: N� APPROPRIATION ADJUSTMENT — FAMILY SELF-SUFFICIENCY PROGRAM (STRATEGIC PLAN NO. 5, 3) CITY MANAGER EXECUTIVE DIRECTOR RECOMMENDED ACTION g CLERK OF COUNCIL USE ONLY: APPROVED C7 As Recommended 17 As Amended El Ordinance on 1`t Reading 171 Ordinance on 20d Reading ❑ Implementing Resolution Set Public Hearing For CONTINUED TO FILE NUMBER Approve an appropriation adjustment recognizing an additional $103,787 of U.S, Department of Housing and Urban Development's Family Self °Buff clenoy Program funds awarded to the Housing Authority of the City of Santa Ana in the revenue account and appropriating the same In the expenditure accounts, Authorize the acceptance of the Family Self-Sufficiency Program grant award from the U.S. Department of Housing and Urban Development in the amount of $138,000 for the period of January 1, 2016 through December 31, 2016. DISCUSSION The Family Self - Sufficiency Program (FS a) is a U.S. Department of Housing and Urban Development (HUD) program that enables families assisted through the Housing Choice Voucher (HCV) program to Increase their earned income and reduce their dependency on rental assistance. Once an eligible family Is selected to participate in the program, the Santa Ana Housing Authority (SAHA) and the head of each participating family execute a five -year FSS Contract of Participation that specifies the rights and responsibilities of both parties and the goals and services for the family, The family works with an FSS program coordinator to be connected to services to assist with completing their goals, Some of the services coordinated through the program Include; child care, transportation, education, job training, employment counseling, financial literacy, and homeownership counseling, among others, An Interest-bearing escrow account Is established for each participating family and any Increases In the family's rent as a result of increased earned Income during the family's participation In the program result In a credit 80A -1 Appropriation Adjustment — Family Self- Sufficiency Program February 2, 2016 Page 2 to the family's escrow account. Once a family successfully graduates from the program, they may access the escrow account and use it for any purpose. Every year HUD issues a Notice of Funding Availability (NOFA) to pay the salaries of FSS program coordinators. In June 2015, a NOFA was issued by HUD to all public housing authorities. Due to an increase of participants in the FSS Program, SAHA was eligible to apply for two FSS program coordinator positions and was awarded $138,000 for both positions for calendar year 2016. The grant award has been executed and the period of performance is a twelve month period beginning January 1, 2016 (Exhibit 1). STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 — Community Health, Livability, Engagement & Sustainability, Objective #3 (Facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods.) FISCAL IMPACT The adopted FY 2015 -16 budget included $68,425 in FSS Program funding. Of this amount, $34,212 was expended during the July through December 2015 period, leaving a balance of $34,213 for the January through June 2016 period. Approval of the appropriation adjustment will recognize the additional $103,787 in revenue account (no. 14018002- 52003) and increase the budget in expenditure account no, 14018760 - various by the same amount. FSS program funds are anticipated to be expended as follows: FY 2015 -16 (January — June 2016) $59,000 FY 2016 -17 (July — December 2016) $69,000 Community Development Agency KR /JB /sb Exhibit: 1. Grant Award Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency 80A -2 FISCAL, YEAR 2015 2 3 FAMILY SELF -SU F- TICIENCY PROGRAM GRANT AGRL( MENT 4 (Attachment to Form HUD -1044) 5 6 ARTICLE 1: BASIC GRANT INFORMATION AND REQUIREMENTS 7 8 1, This Agreement is between the U. S. Department of Housing and Urban Development (-IUD) and the 9 Housing Authority of the City of Santa Ana, California, identified in block 7 on the cover sheet of 10 this agreement, form -IUD -1044, hereinafter referred to as the Grantee. The Grantee's application I and the HUD grant approval letter, including any special conditions, are incorporated into this 12 agreement. 13 14 2. HUD will make $138,000,00 available in total grant funds as shown on form HUD -1044 upon grant 15 award and HUD approval. 16 17 3. This agreement and the I-IUD -1044- shall be effective inunediately upon signature of both parties. 18 19 4, Period of performance: The period of performance will be 12 months. For renewal grantees, the 12 20 month period ofpwfiarmance will generally begin the day after the most recent FSS grant expires. 21 P'ZE.4SFN0 h: Funds (Prom this grant or previous FSSgrants) not expended by the time that the 22 FYI grant awards go into effectNlA.yBE recaptured by PZUD, FIUD will work with grantees to 23 determine the rnostefflcient use ofgrantedfends. 24 25 5. Award type: This is a cast - reimbursable, performance -based grant. 26 27 6. This Grant Agreement will be governed by the following as they may from time to time be amended: 28 the HUD Appropriations Acts, the United States Housing Act of 1937 as amended, the FY 2015 FSS 29 NOFA dated 6/25/15, the Code of Federal Regulations (CPR) 24 CFR Part 24, 24 CFR Part 984, 2 30 CFR Part 200 any applicable 01VIB Regulations or Circulars, and Handbooks and Notices issued by 31 -IUD. 32 33 7. In executing this agreement, the Grantee agrees to abide by the provisions contained within all 34 applicable Federal laws, Executive Orders, OMB Circulars, specifically OMB Circular A -110, any 35 assurances and certifications in the final HUD- approved application (the original approved 36 application may have required amendments by the fleld/applicant), and 24 CFR Part 984 as 37 applicable. 38 39 ARTICLE II: HUD REQUIREMENTS 40 41 SUB - ARTICLE A — GRANT ADMINISTRATION, CONDITIONS REQUIRING TERMINATION _......__...---- 43 44 1. The Grantee shall participate in mecting(s) (if requested by HUD) with HUD's local field office for 45 the purpose of establishing a eonomon understanding and strategy with respect to grant 46 administration, timeline, daliver abler, grant objectives, performance measures, and the scope of work 47 necessary to achieve grant objectives. 48 49 2, The Grantee shall finnish all necessary personnel, materials, services, equipment, and facilities and 50 shall otherwise do all things necessary for, or incidental to, the performance of the activities and tasks 51 set forth in the approved application, and this Grant Agreement (except as otherwise specified). 52 1 3. '.the Grantee agrees that costs incurred prior to the execution of this Grant Agreement and 2 implementation of HUD- approved grant activities, shall not be reimbursable by using funds 3 from this grant except where the period of performance is back -dated with HUD approval 4 due to HUD funding cycles. 5 6 4. The work to be performed under ibis Grant Agreement is outlined in the attached logic model. 7 8 5. The grant funds shall be used only for eligible activities. Per the FY 2015 FSS NOFA, FSS funds 9 may be used to perform routine HCV mid/or PH programs functions only if it enhances the 10 effectiveness of the FSS program. The performance of routine HCV /PH program functions may not 11 be such that it impedes the ability of the FSS Coordinator(s) to effectively perform FSS finctions. 12 Performance of 'routine HCV and/or PH functions for non -FSS families does not enhance the 13 effectiveness of the FSS program and is therefore an ineligible use of FSS finds, Additionally, while 14 FSS funds may be used to perform homeownership functions for FSS families, this may not be the 15 sole function for which funds are used. Refer to the FY 2015 FSS NOFA for more information on 16 eligible and ineligible uses of funds. 17 18 6. Should any of the following conditions arise, grantees are required to submit: in writing any changes 19 to the previously- approved grant to the appropriate local HUD field office personnel: 20 21 a. Any change In the scope, objective, or conditions of the program. 22 b, Changes in any subcontracting, or otherwise obtaining the services of a third party to 23 perform activities that are central to the purposes. 24 c, Other changes that may adversely affect the program. 25 26 7. Grantees needing to extend the term of their grant in order w fully accomplish their goals should. 27 request art extension in writing sixty calendar days prior to the grant termination date. The request 28 must be submitted to the field office for review and approval. Extensions will generally only be 29 granted if no funding is awarded to the grantee in the following year, The Grantee must also: 30 31 a. Submit a narrative justification explaining why the extension is needed, how much 32 additional time will be required, the circutnsta aces that require the proposed extension, 33 the work that will be conducted during the extension period, and the effect a denial would 34 have on the program. 35 b. Have satisfied all special conditions of the grant agreement except those that would be 36 fulfilled in the remaining period of the grant. 'Phis includes the performance and 37 resolution of audit findings in it timely manner. 38 39 Grautees should be aware that any extensions (other than those caused by I-TUD funding cycles) may 40 result in a negative impact on the Past Performance review in future grant applications. 41 wk o. nuy wiuugus mmlucawu uy uw Urwlwe inum oc in wrnnng (emants are a0cepmwe), 1 ul) will 43 approve/reject requested changes as appropriate. Approved changes will be reflected by an 44 amendment to this Grant Agreement and issued by a revised HUD -1044 cover sheet with any 45 attached documents as needed to define changes approved. Amendments will become effective upon 46 execution of the HUD -1044 between HUD and the Grantee when both parties have signed the T. TJD- 47 1044. 2 • I . 1 2 9. In general, if the Grantee's program is not implemented within 60 days of the grant start date tthe 3 start date Is the date both parties sign the IIUD -1044 and this Craut Agreement), the Crrantee 4 must report in writing to the appropriate HUD field office of the steps taken to initiate the program, 5 resulting changes to the timetable, the reason for the delay, and the expected starting date. Any 6 timetable revisions as a result of the delay must be included for HUD approval, Renewal grantees are 7 not subject to this implementation requirement. however, renewal grantees must start drawing down 8 the 2015 funds within 30 days of the period of performance start date (see Article I, Number 4 9 above), unless the grantee justifies in writing to the appropriate I -IUD field office the delay in 10 drawdown of funds. Also see Subarticle B, Number 3 below, NOTE; Failure to comply with this 11 requirement may result in termination of this agreement and recapture of grant funds. PLEASE 12 NOTE, All 2015 FSS grantees are considered renewal grantees, 13 14 10. I .) may terminate funding if the Grantee demonstrates an unwillingness or inability to implctnent 15 and maintain the program; does not use procedures that will minimize the time elapsing between 16 drawdowns and disbursements of grant funds; does not adhere to agreement requirements or special 17 conditions; engages in the improper award or administration of grant subcontracts; does not subridt 18 required reports; or produces unacceptable deliverables. 19 20 SUBARTICLE B: I+INANCIAL RESPONSIBILITIES 21 22 1. Prior to initial drawdown of funds, all Grantees must have secured ouline access to the Internet as a 23 nreamts to communicate with I OD on grant matters. Applicants shall draw down funds using the 24 electronic Line of Credit Control System (e- LOCOS) 25 26 2. As applicable, the Grantee agrees to comply with the organizational audit requirements of DMB at 2 27 CFR Part 200 including audit requirements. The final audit report must cover the entire period of the 28 grant, The audit must be submitted to HUD no later than 30 days after the grant is closed, covering 29 the entire award period originally approved or amended. All other requirements of 2 CFR Part 200 30 shall apply. For grantees where an audit is required, it single audit or a program- specific audit is 31 acceptable. If a grantee chooses a single audit, the final audit report that includes this grant is due no 32 later than 30 days after the single audit is completed. According to 2 CFR 200.501, grantees that 33 expend less than $7.50,000 ors federal awards are exemptfrom the audit requirement, but records "?east 34 be available for review or audit, 35 36 3, The Grantee shall minimize the time clapsing between the transfer of funds from HUD and the 37 disbursement of Rinds. The HUD funds are to be made available based on actual need. The Grantee 38 must make a drawdown only for incurred costs. Drawdowns in excess of need may result in special 39 procedures for payments, or termination of the grant when there are persistent violations, Funds 40 requisitioned through LOCCS must be disbursed within three calendar days after receipt of funds drawdown, _. _ 43 SUBARTICLE C: METHOD OF PAYMEN'r [FUNDS DRAWDOWN] 44 45 1, The Grantee may not draw down grant funds until all pro-conditions listed in form IlUD -1044, this 46 Grant Agreement, the NOFA or in the award loner, art) completed by the grantee and verified by 47 HUD, 48 • 11 1 2. Payments of grant funds shall be through electronic fluids transfer using e- LOCOS. Initial drawdown 2 cannot be earlier than the start date of the graunt term. 3 4 3, E -LOCCS Program Edits. 5 6 a. E -LOCCS will automatically perform a series of review edits (both generic and program 7 specific) of each payment request. Failure of one of the program edits will cause the payment 8 request to be referred to the I-IUD field office for review. 9 10 b, The FIUD field office will complete the review. The request will romain in the system and I I further drawdowns will not be allowed until that review is complete and the di- awdowns 12 approved or rejected. 13 14 o. The Grantee shall immediately contact the 14UD field office when there is a question 15 regarding the request or when the request has been referred to the I-IUD program office for 16 review, A request will be referred to the program office for review when: 17 18 i, Theme are requests for over 10% of total grant funds per calendar month; 19 20 it. Failure to submit an annual HUD form SF -425 - Financial Status Report, or Logic 21 Model, as defined by this agreement and 2 CFR part 200. F -LOCCS shall not accept 22 a request for'fund.s if required reports from the Grantee are ten or more days overdue 23 and wilt not accept future requests until the I-IUD field office confirms receipt and 24 approval of the reports in LOCOS. 25 26 iii. If the Gramoe repeatedly fails to submit required forms, LOCOS will be converted to 27 a system in which the HUD Field OPlice, will manually review each drawdown 28 request prior to releasing funds to the Grantee. 29 30 SUB - ARTICLE D: AUTHORIZED FUNDS BY BUDGE'r LINE ITFINI NUMBER 31 32 1, 'Please see Article II, Subarticle A, Nnunber 5 above. 33 34 2. The Grantee's budget consists of one Voucher Budget Line Item: 1165 - FSS Coordinator (salary & 35 fringe) 36 37 SUBARTICLE E: REPORTING REQUIREMENTS 38 39 1. The Grantee must evaluate its activities and submit a performance Logic Model and SF -425 to HUD. 40 The Logic Model must be submitted electronically as an excel file, The Logic Model and SF -425 41 shall be submitted to the Grantee's area ONAP/Public Housing Director in the, recipient's local �2— -IdUllfeld ut'fi'oc'nn'lat r Lh�trr Jaliriary 30 201"7; u.ntess granted im extensiori-Gy�HM TTie - 43 reporting' period will cover the 2016 Calendar Year (1/1/2016 - 12/31120,16), All Logic Model 44 reports should include answers to the Management Questions and it narrative (in the LM form) 45 indicating any positive or negative deviations from projected outputs and outcomes as contained in 46 your approved Logic Model. 47 4 FORM M 1 2, HUD shall determine the Grantee's progress based upon a comparison between the Grantee's actual 2 performance and its performance objectives and timelines established in the HUD- approved budget 3 and Logic Model, 4 5 3. The IiUD field office shall maintain official records on the Grantee's performance measures and its 6 progress reports, However, the Grantee must also maintain such records, including the Logic Model, 7 and SF -425, Hi1D review, and/or evaluations. 8 9 SUSARTICLE F: ADMINISTRATIVE REQUMEMENTS 10 11 1. Grantees must comply with al l current HUD program rules and regulations, 12 13 2. The Grantee shall maintain, and have access to, copies of documents relating to the award and 14 administration of this grant for at least three years after final closeout date of the grant for inspection 15 by HUD, the General Accounting Office, or their duly authorized representatives, 16 17 3. The accounting systems of the Grantee must ensure that HUD funds arc not co- mingled with funds 18 from other Federal, State, Tribal, or local goverranent agencies or other RU) program funds. Funds 19 specifically budgeted and/or received for one program may not be used to support or reimburse '20 another, Where the Grantee's accounting systom cannot comply with this requirement, the Grantee 21 Hurst establish a system to provide adequate fund accountability for each program for which it has 22 been awarded funds. 'Ilre Grantee's selection of depository facility (such as a bank for example) 23 shall be compliant with Federal regulations and have insurance from the Federal Deposit Insurance 24 Cor 25 poration or the National. Credit Union Share Insurance Fund to .insure the established account. 26 4, The Grantee agrees to comply with the following requirements for which HUD has enforcement 27 responsibility, 28 29 a. Administrative requirements of 2 CFR Fart 200. These include the procurermont 30 requirements as applicable. 31 32 b. Grantees are required to comply with the Cost Principles set forth in 2 CFR Part 200, 33 Subpart P. 34 35 5. Equal Opportunity Requirements. Grant founds must be used in accordance with the following: 36 37 a. The requirements of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) 38 (Nondiscrimination in Federally Assisted Programs) and implementing regulations issued 39 at 24 CFIt part 1. 40 41 b. The prohibitions against discrimination on the basis of age under the Age Discrimination - -42 — Act -oF 975-(42-U S 0-6109 -09) -and IfnPle nee iting ze GTatr7ihs ai L � ",F1li out Z46, and 43 the prohibitions against discrimination against handicapped individuals under section 504 44 of the Rehabilitation. Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 45 CFR Part 8. 46 47 c. The requirements of Executive Order 11246 (Equal Employment Opportunity) and the 418 implementing regulations issued at 41 CFR Chapter 60, 5 80A -7 1. 2 d. For grantees using their funds to support residents of conventional Public Housing (i.e. 3 not Housing Choice Vouchers), the requirements of Section 3 of the housing and Urban 4 Development Act of 1968, (12I1,S,C. 1701u) State that (1) to the greatest extent feasible, 5 opportunities for training and employment arising in connection with the planting and 6 carrying out of any project assisted with grant funds be given to low - income persons 7 residing within the unit of general local government. or the metropolitan area (or non- 8 metropolitan county) as determined by HUD, in which the project is located; and (2) to 9 the greatest extent feasible, contracts for work to be perforated in connection with any 10 such project be awarded to business concerns, including but not limited to individuals or 11 firms doing business in the field of planning, consulting, design, architecture, building 12 construction, rehabilitation, maintenance, or repair, which are located in or owned in 13 substantial part by persons residing in the same metropolitan area (or non- metropolitan 14 county) as the project. 15 16 6. The regulations in 24 CFR 87, related to lobbying, including the requirement that the Grantee obtain 17 certifications and disclosures from all covered persons, 18 19 7, Drug -free Workplace Requirements (Grants) in 24 CFR 2424. 20 21 8. Restrictions on participation by ineligible, debarred or suspended persons or entitles at 24 CFR Part 22 2424, Subparts A through J, which are ap'pl'icable to contractors and subgrantees. 23 24 9. Other applicable regulations. 25 26 10, The Grantee's computer systerns must operate in accordance with IIUD's computer systems and 27 software to facilitate any and all electronic documents for conversion to HUD computer systems and 28 sotware. That is, when sending/transferring documents, e -rnait, or CDs to HUD, the systems must be 29 compatible so that HUD receives at exact copy, 30 31 11, The Grantee's computer and information systems must be able to access HUD's website(s) so that 32 data can be inputted as may be required by the grant; information can be retrieved; and funding 33 through HUD's E -LOCCS system may be accessed. 34 35 SUB- ARTICLE Gr GRAPIT CLOSEOUT 36 37 1. Code of Federal Regulations (CFR), 2 CFR Part 200 prescribes uniform closeout procedures for 38 Federal cooperative agreemonts /grant agreements. 39 40 1 It is the responsibility of the Grantee to comply in fidI with all closeout - reporting requirements and to 41 submit closeout reports in a timely manner. 42 — - - — .— ..... ..... ...- ----- .......— ......... — -- ....__........ —. — _.._.- _ _ 43 3. The Grantee shall initiate project closeout within 30 days of the grant's termination date. At HUD's 44 option, the Grantee may delay initiation of project closeout until the resolution of any IIUD 45 monitoring findings. If I-M exercises this option, the Grantee must promptly resolve the findings. 46 6 .1 woo 1 4. The Grantee recognizes that the closeout process may entail review by HUD to determine compliance 2 with the grant agreement. The Grantee shall cooperate with any and all reviews which may include 3 maldng available records requested for on -site HUD inspection, 4 5 5. Within 30 days after the end date of the grant or any approved extension (revised end - date), the 6 following documents must be submitted by the Grantee to the HUD field office: 7 8 a. A certification of project completion which is a statement signed by the grantee. 9 10 b. A certification of compliance with all requirements of the grant agreement winich is a 11 statement signed by the grantee 12 13 c. Lola. Model and I <inanciaC Itetynrt (S -425) (ace Subnrticle P�, For FSS, the Grantee 14 submits a Logic Model and one SF -425 for the 12 -month period of the grant, This 15 submission also serves as the grant's final report which is a cumulative summary of 16 expenditures to date and must indicate the exact balance of unexpended funds. (The repot 17 shall cover the grant start date to the end of grant), When the final FIUD form SF -425 is 18 approved, the HUD field office will establish the amount clue to .HUD or cancel (recapture) 19 any unused grant funds as applicable, 20 21 6. When the HUD field office has determined to its satisfaction that the grant activities were completed 22 and all Federal requirements were satisfied, the IIUD field office will execute a closeout amendment 23 to the Grand Agreement with the Grantee. 24 25 7. The Closeout Agreement or clause will include the Grantee's agreement to abide by any continuing 26 Federal requirements. 27 28 S. Failure to submit the required financial report, logic model, or any required audit report; or to resolve 29 program, financial or audit issues, may result in a suspension or termination of any and/or all HUD 30 grant payments. 31 32 SUB - ARTICLE I1: DETA,ULT 33 34 1, Definition. A default under this Agreement shall consist of usinggrantfindsftr apurpose other 35 than as authorized by this agr^eenient; any noncompliance with legislative, regulatory, or other 36 requirements applicable to this Agreement; any other material breach of this Agreement; or any 37 material misrepresentation in the application submissions. 38 39 2. HUD I'relimvrary Determinntiorr of Default. If HUD makes an initial determination that the 40 Grantee is in default, FIUD will give the Grantee written notice of tbis determination and of the 41 corrective or remedial action the Grantee must take in order to avoid default. The Grantee shall have ----42— ttritit3th�r `sofgiibstlantialf-6ii —nd— — - - -- 43 data, that it is not in d4ruh, or that the proposed corrective or remedial action is inappropriate or 44 unnecessary, before HUD implements the remedial action. 45 46 3. If FIUD determines that there is all imtninont probability that the Grantee will continue to expend 47 grant funds contrary to this agreement. unless HUD takes immediate action, HUD may, at the time of 7 FORM I written default notification to the Grantee, order a remedial action appropriate to prevent such 2 expenditure. 3 4 4. Corrective or remedial actions that HUD may order under this Agreement include, but shall not be 5 limited to, the following: 6 7 a. Requiring the Grantee to prepare and follow a BBD approved schedule of actions and /or 8 a. plan for properly completing the activities approved under the grant; 9 10 b. Discontinuing drawdowns under LOCOS and prohibiting payment or reimbursement for 1'1 any grant activities or, if more appropriate, for only those activities affected by the 12 default; and 13 14 c. Requiring reimbursement by the Grantee to HUD for grant amounts used improperly. 15 16 5, Grantee Failure to Renrcd Default. Where 1IUD deterraines that remedial actions required by 17 IIM to be taken by the Grantee have not been undertaken as instructed, or will not be effective in is correcting the default and to prevent firther default, HUD may take the following additional 19 corrective and remedial actions under this Agreement: 20 21 a. Put a hold on draws from eLOCCS pending IIUD inauual review and approval of every 22 drawdown request and permit draws only on a reimbursement basis. 23 24 b. ,Suspend the Grantee's authority to make drawdowns for affected activitics for no more 25 than ninety (90) days pending action to cure the default and to prevent further default by 26 the Grantee, or pending final remedial action by HUD. 27 28 c, Reduce the grant in the amount affected by the default; 29 30 d. 'Terminate the grant and initiate closeout procedures; 31 32 e. Take action against the Grantee under 24 CrR Part 24 with respect to future FEUD or 33 Federal grant awards; 34 35 £ Require roinrbu semen' by the Grantee to HUD for grant amounts used improperly; and 36 37 g. Take any other remedial action legally available. 38 39 SUBARTICLE I. GRANT MODIFICATION 012 TERMINATION 40 BY AGR.EFMENT BETWEEN HUD AND GRANTEE 41 -- - - --42 - --- l:- -i41AD -and -the Grantee-may mutuatly agree -to-modifythis`agr-mttm Ts to- t9ine, cost, -of actKity uRfig 43 form %IUD -1044 in whole or in part, at any time. 44 45 2, HUD or the Grantee, in accordance with 2 CFR Part 200 may terminate the agreement for 46 convenience, after 30 days advance written notice, if it. is in the best interest of any of the parties. The 47 termination notice must specify the reason :for the termination action and the proposed effective date. 48 FOODINUI 1 2 SUB - ARTICLE J: DISPUTES 3 4 During the performance of this grant, disagreements may arise between the Grantee and I-IUD on various 5 issues, In accordance with 2 CFR 200,341, if a dispute concerning a question of fact arises, aller hearing 6 from the Grantee, the HUD Field Office Director shall prepare a final decision, taking into account all 7 facts and documentation presented, The decision shall be mailed to the Grantee. The Grantee may appeal 8 any decision by ,letter to the local IM Field Office Director, Public Rousing Division/office of Native 9 American Programs of the HUD office administering this Grant Agreement. The decision of the Fielcl. 10 Office Director shall be final, 11 12 ARTICLE III: GRANTEE PERFORMANCE 13 14 HUD will judge perforuance based upon whether the Grantee achieves the agreed upon activities within 15 grant time limits and within budget and whether the Grantee has produced tangible results through the 16 implementation of grant activities. 17 18 ARTICLEIV: GRANTEEMISREPM, ENTATION 19 20 The Grantee or any subcontractor to the Grantee bound, by this histrmnent who malces or causes to be 21 made a false statement, claim, or misrepresentation, which the Grantee or entitylusows or has reason to 22 know is false, may be imprisoned and/or fined in accordance with civil or criminal penalties and/or fines 23 applicable under law, including Title 18 of the United States Code (U.S,C.), Title 31, et red, (Program 24 Fraud Civil Remedies Act) and any other applicable provisions of Federal, State or local law. 25 80A -11 1 2 3 4 5 C 7 8 9 10 11 12 13 14 15 lb 17 18 WITNESS WHEROF, the parties have executed this Grant Agreement by their duly authorized signatories as of the date signed by both parties. Kc eenderI Executive Dir or DATE Housing Authority of the City of San Ana Marcie Chavez DATE Director, Office of Public Housing 10 80A -12 r Attorney on