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HomeMy WebLinkAbout FULL PACKET_2016-12-20MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA CALLED TO ORDER ATTENDANCE PUBLIC COMMENTS — None DECEMBER 6, 2016 CLOSED SESSION MEETING COUNCIL CHAMBER 22 CIVIC CENTER PLAZA 5:17 P.M. COUNCILMEMBERS Present: VICENTE SARMIENTO, Mayor Pro Tem ANGELICA AMEZCUA (5:39 p.m.) P. DAVID BENAVIDES ROMAN A. REYNA SAL TINAJERO COUNCILMEMBERS Absent: MIGUEL A. PULIDO, Mayor MICHELE MARTINEZ STAFF Present: DAVID CAVAZOS, City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council COUNCIL RECESSED to Room 147 for Closed Session discussion at 5:17 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: CONFERENCE WITH LEGAL COUNSEL --EXISTING LITIGATION pursuant to Paragraph (1) of subdivision (d) of Section 54956.9 of the Government Code: Kimberly Cerda v. City of Santa Ana, Orange County Superior Court Case No. 30-2015-00803814. CITY COUNCIL MINUTES 1 DECEMBER 6, 2016 10A-1 2. CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION - Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9: One Matter 3. PUBLIC EMPLOYEE - PERFORMANCE EVALUATION pursuant to Section 54957(b)(1) of the Government Code: Title: City Manager, City Attorney and Clerk of the Council CLOSED SESSION REPORT - See Item 19A for any reportable actions. ADJOURNED THE CLOSED SESSION MEETING AT 6:15 P.M. AND CONVENED TO THE REGULAR OPEN MEETING. CITY COUNCIL MINUTES 2 DECEMBER 6, 2016 10A-2 CALLED TO ORDER REGULAR OPEN MEETING COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:17 P.M. ATTENDANCE COUNCILMEMBERS Present: VICENTE SARMIENTO, Mayor Pro Tem ANGELICA AMEZCUA P. DAVID BENAVIDES ROMAN A. REYNA SAL TINAJERO PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS COUNCILMEMBERS Absent: MIGUEL A. PULIDO, Mayor MICHELE MARTINEZ STAFF Present: DAVID CAVAZOS, City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council EMILY PINEDA, GREENVILLE FUNDAMENTAL COUNCILMEMBER BENAVIDES SPECIAL PRESENTATION - The Significant Achievement Award presented to the Santa Ana Police Department by the California Alcoholic Beverage Control Agency. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER AMEZCUA to Greenville Fundamental and Washington Elementary schools for their participation in the Plaza Navideha event. CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER BENAVIDES and COUNCILMEMBER REYNA to Warren Bussey in recognition of his contributions to the City and his 103rd birthday. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER REYNA to the following individuals in recognition of their commitment and outstanding service as a Board CITY COUNCIL MINUTES 3 DECEMBER 6, 2016 10A-3 Member on a City Commission: Mario Alvarado; Isis Calvario; James R. Gartner; Brian Leal; Tish Leon; Edward Murashie; Stephanie A. Najera. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER REYNA to the following individuals for their leadership and mentoring role over the years: Leticia Aguilar; Mary Bloom Ramos; Cecelia Rodriguez; Mildred Smith; Frank Soto. CLOSED SESSION REPORT- See Item 19A for any reportable actions. PUBLIC COMMENTS - None CONSENT CALENDAR ITEMS MOTION: Approve staff recommendations on Consent Calendar Items 10A through 31A, with the following modifications: • Councilmember Tinajero, pulled Agenda Item 19F for separate discussion MOTION: Reyna SECOND: Tinajero VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) ** Consent Calendar later revoted. Motion by Councilmember Reyna, Seconded by Councilmember Amezcua and unanimously carried. ADMINISTRATIVE MATTERS MINUTES 10A. MINUTES FROM THE REGULAR MEETING OF NOVEMBER 15, 2016 {STRATEGIC PLAN NO. 5, 1) — Clerk of the Council Office MOTION: Approve Minutes. CITY COUNCIL MINUTES 4 DECEMBER 6, 2016 10A-4 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. ADOPTING THE UPDATED CALIFORNIA AND INTERNATIONAL BUILDING AND FIRE CODES WITH AMENDMENT AND REQUISITE FINDINGS {STRATEGIC PLAN NO. 5, 1) — Clerk of the Council Placed on first reading at the November 15, 2016 City Council meeting and approved by a vote of 4-0 (Amezcua, Benavides and Sarmiento absent). Published in the Orange County Reporter on November 25, 2016. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS -2905 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTERS 8 AND 14 OF THE SANTA ANA MUNICIPAL CODE TO ADOPT AND AMEND THERETO THE MOST RECENTLY ENACTED CALIFORNIA BUILDING CODE, CALIFORNIA RESIDENTIAL CODE, CALIFORNIA GREEN BUILDING STANDARDS CODE, CALIFORNIA ELECTRICAL CODE, CALIFORNIA MECHANICAL CODE, CALIFORNIA PLUMBING CODE, CALIFORNIA ENERGY CODE, CALIFORNIA FIRE CODE, CALIFORNIA EXISTING BUILDING CODE, AND INTERNATIONAL PROPERTY MAINTENANCE CODE BOARDS / COMMISSIONS / COMMITTEES 13A. COUNCIL COMMITTEES — AGENDA AND MINUTES {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Receive and file. NAME MEETING DATE Santa Ana Unified School District and City of Santa Ana 11/14/2016 Joint Policy Committee (Cancelled) Code of Ethics and Conduct Committee (Cancelled) 11/17/2016 Public Safety and Neighborhood Improvement Committee 11/22/2016 FINAL TRACT MAP NOTIFICATIONS Pursuant to Section 34-183 of the Santa Ana Municipal Code, the City Engineer has received this Final Map and is in the process of reviewing the map for final approval. The City Engineer shall approve or disapprove this map within 10 days of the City Council Meeting. 17A. CERTIFICATION AND APPROVAL BY CITY ENGINEER - FINAL PARCEL MAP NO. 2016-103 FOR 2740 SOUTH BRISTOL STREET (STRATEGIC PLAN NO. 3, 2) - Public Works Agency CITY COUNCIL MINUTES 5 DECEMBER 6, 2016 10A-5 MOTION: Receive and file. MISCELLANEOUS ADMINISTRATION 19A. CONFIRMATION OF CLOSED SESSION ACTION(S) — None X ED ABSS = clerk.of'Yhe, - and��fac MOTION: Excuse City Council Member Martinez. MOTION: Tinajero SECOND: Amezcua VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) There was no motion to excuse Mayor Pulido. 19C. PUBLIC WORKS AGENCY STATUS OF PROJECTS - MONTHLY CAPITAL IMPROVEMENT PROGRAM EXECUTIVE REPORT FOR NOVEMBER 2016 {STRATEGIC PLAN NO. 5, 1) - Public Works Agency MOTION: Receive and file. 19D. MUNICIPAL UTILITY SERVICES SYSTEM UPDATE {STRATEGIC PLAN NO. 7, 2D) - Information Technology Department MOTION: Receive and file. 19E. SANITATION RATE REDUCTION {STRATEGIC PLAN NO. 4) - Public Works Agency MOTION: Receive and file. 19F.` CITY COUNCIL MINUTES 6 DECEMBER 6, 2016 10A-6 Councilmembers Tinajero and Amezcua support additional patrol officers and review in context of union negotiations. Councilmember Benavides, important to review all patrol schedules. MOTION: Receive and file. MOTION: Tinajero SECOND: VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 19G. UPDATE ON THE 2016 PLAZA NAVIDENA AND TREE LIGHTING CEREMONY {STRATEGIC PLAN NO. 5, 5C) - Parks, Recreation and Community Services Agency MOTION: Receive and file. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A. JOINT USE AMENDMENT AND REIMBURSEMENT AMENDMENT OF CONSTRUCTION COST FOR ROOSEVELT/WALKER SITE AND APPROPRIATION ADJUSTMENT {STRATEGIC PLAN NO. 5, 4A) - Parks, Recreation and Community Services Agency; Community Development Agency MOTION: 1. AGMT NO. 2016-342 - Authorize the City Manager and Clerk of the Council to execute an amendment to the joint -use agreement with Santa Ana Unified School District for the programming of Roosevelt/Walker site for a 30 -year term, with the option for two, 10 - year renewals to include language for both parties to contribute $50,000 per year into an irrevocable trust for repairs, subject to non - substantive changes approved by the City Manager and City Attorney. 2. AGMT NO. 2016-343 - Authorize the City Manager and Clerk of the Council to execute an amendment to the reimbursement agreement with Santa Ana Unified School District for the reimbursement of construction costs of the Roosevelt/Walker site improvements by CITY COUNCIL MINUTES 7 DECEMBER 6, 2016 10A-7 increasing the reimbursement amount by $2,587,509, for a total amount of $7,517,509, subject to non -substantive changes approved by the City Manager and City Attorney. 3. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2017-062 - For FY 16/17 to recognize $498,248 from prior year fund balance and appropriate $223,248 into Residential Development District 2 and $275,000 into Residential Development District 3. 2013. APPROVE APPROPRIATION ADJUSTMENT, CONSULTANT AGREEMENT FOR OC STREETCAR DESIGN REVIEW SUPPORT, AND AMEND 2016/17 CAPITAL IMPROVEMENT PROGRAM (CIP) (STRATEGIC PLAN NO. 6, 1C} - Public Works Agency ro s ► 1. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2017-063 - Recognize Orange County Transportation Authority funds as outlined in the Design Agreement between Orange County Transportation Authority and the City of Santa Ana, in the amount of $493,469, to be received into the Select Street Construction Fund and Measure M2 Competitive Fund revenue account and appropriated into the same expenditure accounts for expenditure in Fiscal Year 2016/17. 2. AGMT NO. 2016-344 - Authorize the City Manager and the Clerk of the Council to execute an agreement with Kimley-Horn and Associates, Inc., to provide engineering, technical, and administrative support services, for the three-year period beginning December 6, 2016 and expiring December 5, 2019, with provisions for one two-year renewal option exercisable by the City Manager and City Attorney, in an amount not to exceed $250,000 for the term of the contract, including any renewal, subject to non -substantive changes approved by the City Manager and City Attorney. 3. Amend the Fiscal Year 2016/17 Capital Improvement Program to add Orange County Transportation Authority funding in the amount of $493,469 to the OC Streetcar Project. GRANTS/APPLICATIONS CITY COUNCIL MINUTES 10A-8 DECEMBER 6, 2016 21 A. SUBSTANTIAL AMENDMENT TO 2016-2017 ANNUAL ACTION PLAN FOR REALLOCATION OF COMMUNITY BLOCK GRANT FUNDS {STRATEGIC PLAN NO. 5, 1} - Community Development Agency MOTION: Approve a Substantial Amendment to the 2016-2017 Annual Action Plan for the reallocation of Community Development Block Grant funds and authorize its submission to the U.S. Department of Housing and Urban Development. SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES 22A. SPEC. NO. 16-118 - TACTICAL VIDEO PHONE SYSTEM {STRATEGIC PLAN NO. 1, 51 - (Police Department) - Finance and Management Services MOTION: Authorize a one-time purchase and payment of purchase order to 836 Technologies in the amount of $29,240, subject to non -substantive changes approved by the City Manager and City Attorney. 22B. SPEC. NO. 16-136 - REPLACEMENT OF AUTOMATIC TRANSFER SWITCH IN THE CITY HALL DATACENTER AND MAINTENANCE AND PARTS FOR THE EMERGENCY POWER SYSTEM {STRATEGIC PLAN NO. 6, 2) - (Information Technology Department) - Finance and Management Services MOTION: Authorize a one-time purchase and payment of purchase order to ePower Network for the replacement of an Automatic Transfer Switch in the City Hall datacenter in an amount not to exceed $18,831; and a $25,000 blanket contract for the term beginning December 1, 2016 through June 30, 2017, for maintenance and parts related to the emergency power system with ePower Network for a total amount not to exceed $43,831, subject to non -substantive changes approved by the City Manager and City Attorney. 22C. SPEC. NO. 16-112 - INSTALL ENERGY-EFFICIENT LIGHTING FIXTURES AND CONTROLS AND EXECUTE AGREEMENT FOR ON -BILL FINANCING LOAN {STRATEGIC PLAN NO. 4, 3D AND 6, 2A} - Finance and Management Services MOTION: 1. Authorize a one-time purchase and payment of purchase order to Pacific Lighting Management Inc. to provide and install advanced energy-efficient lighting fixtures and controls at the Newhope Library in an amount not to exceed $78,175 inclusive of a $6,348 contingency, subject to non -substantive changes approved by the City Manager and City Attorney. CITY COUNCIL MINUTES 9 DECEMBER 6, 2016 10A-9 2. AGMT NO. 2016-345 - Authorize the City Manager and Clerk of the Council to execute an agreement with Southern California Edison (SCE) to provide a $71,785 no -interest On -Bill Financing loan and $6,390 in incentives to fund Spec. No. 16-112 subject to non -substantive changes approved by the City Manager and City Attorney. PROJECTS/CHANGE ORDERS 23A. AWARD CONTRACT FOR CONSTRUCTION OF THE SANTA ANA -DELHI CHANNEL DIVERSION PROJECT (PROJECT NO. 16-6467) {STRATEGIC PLAN NO. 6, 1G) - Public Works Agency MOTION: 1. Reject all bids received on September 22, 2016, for the construction of the Santa Ana—Delhi Channel Diversion project to allow re -advertising of the project to include significant changes to the scope of construction. 2. Award a contract and authorize the City Manager and the Clerk of the Council to execute a construction contract to Lonerock, Inc. the lowest responsible bidder, in accordance with the base bid in the amount of $4,593,375, for the term beginning upon execution of the contract and ending upon project completion, for the construction of the Santa Ana—Delhi Channel Diversion project, subject to non - substantive changes approved by the City Manager and City Attorney. 3. Approve the Project Cost Analysis for a total estimated construction delivery cost of $6,386,775, which includes the contract bid amount, administration, inspection and testing, and an authorized contingency of $1,024,800. 23B. AWARD CONTRACT TO CALIFORNIA PROFESSIONAL ENGINEERING, INC., FOR GRANT -FUNDED SAFE ROUTES TO SCHOOL ENHANCEMENTS AT HENINGER ELEMENTARY (PROJECT NO. 166870) {STRATEGIC PLAN NOS. 6, 1 B & 1 G) — Public Works Agency MOTION: 1. Award a contract and authorize the City Manager and Clerk of the Council to execute a construction contract to California Professional Engineering, Inc., the lowest responsible bidder, in accordance with the base bid in the amount of $417,341.50, for the term beginning upon execution of the contract and ending upon project completion, for the Safe Routes to School Enhancements for Heninger Elementary project, subject to non -substantive changes approved by the City Manager and the City Attorney. CITY COUNCIL MINUTES 10 DECEMBER 6, 2016 10A-10 2. Approve the Project Cost Analysis for a total estimated construction delivery cost of $500,811, which includes the construction contract, administration, inspection and testing, and an authorized contingency of $41,735. 3. Amend the Fiscal Year 2013-14 Capital Improvement program and approve the reallocation of $70,811 in Measure M2 Local Fair Share funds from the Traffic Control Devices Inventory Project to the Safe Routes to School Enhancements for Heninger Elementary. 23C. AWARD CONTRACT TO CALIFORNIA PROFESSIONAL ENGINEERING, INC., FOR GRANT -FUNDED SAFE ROUTES TO SCHOOL ENHANCEMENTS AT WASHINGTON ELEMENTARY (PROJECT NO. 166872) {STRATEGIC PLAN NOS. 6, 1 B & 1G} — Public Works Agency MOTION: 1. Award a contract and authorize the City Manager and Clerk of the Council to execute a construction contract to California Professional Engineering, Inc., the lowest responsible bidder, in accordance with the base bid in the amount of $457,711.75, for the term beginning upon execution of the contract and ending upon project completion, for the Safe Routes to School Enhancements for Washington Elementary project, subject to non -substantive changes approved by the City Manager and the City Attorney. 2. Approve the Project Cost Analysis for a total estimated construction delivery cost of $572,141, which includes the contract bid amount, administration, inspection and testing, and an authorized contingency of $45,772. AGREEMENTS 25A. INFORMATION TECHNOLOGY SERVICE MANAGEMENT {STRATEGIC PLAN NO. 7, 2D) {SURPLUS ALLOCATION FUNDING) - Information Technology Department MOTION: 1. AGMT NO. 2016-346 - Authorize the City Manager and the Clerk of the Council to approve and execute agreement with Cherwell Software for an Information Technology Service Management System for a two- year period, beginning December 1, 2016 through November 30, 2018 in the amount of $61,850, subject to non -substantive changes approved by the City Manager and City Attorney. CITY COUNCIL MINUTES 11 DECEMBER 6, 2016 10A-11 2. AGMT NO. 2016-347 - Authorize the City Manager and the Clerk of the Council to approve and execute agreement with Migration Technologies (MiTech) for implementation professional services of the Cherwell system for a one-year period, Beginning December 1, 2016 through November 30, 2017 in an amount not -to -exceed $150,000, subject to non -substantive changes approved by the City Manager and City Attorney. 25B. HISTORIC PROPERTY PRESERVATION AGREEMENTS {STRATEGIC PLAN NOS. 5, 2, 3) — Planning and Building Agency Historic Resources Commission (HRC) approved recommended action on November 7, 2016. MOTION: Authorize the City Manager and Clerk of the Council to execute the attached Mills Act agreements with the below -referenced property owners for the identified structures, subject to non -substantive changes approved by the City Manager and City Attorney {Property Owner(s), Historic Property Preservation Agreement No. (HPPA), Address/House and HRC Vote): 1. AGMT NO. 2016-348 — With June Magarro, HPPA No. 2016-06, 2315 N. Benton Way (Goodman House), 6:0 (Schaefer absent); 2. AGMT NO. 2016-349 - With Leah Jones Trust, HPPA No. 2016-08, 2449 N. North Park Blvd.(Warren House), 6:0 (Schaefer absent); 3. AGMT NO. 2016-350 - With David & Glenda Fink, HPPA No. 2016-10, 2433 N. Heliotrope Dr.(Dr. Edwards House), 6:0 (Schaefer absent); 4. AGMT NO. 2016-351 - With Eric & Carol Alderete, HPPA No. 2016-11, 1150 W. River Lane (Schulz House), 6:0 (Schaefer absent); 5. AGMT NO. 2016-352 - With Joyce M. Keller, HPPA No. 2016-14, 2502 N. Valencia St. (Dever House), 6:0 (Schaefer absent); 6. AGMT NO. 2016-353 - With Atticus Wegman, HPPA No. 2016.16, 412 W. Santa Clara Ave. (Chick House), 6:0 (Schaefer absent); 7. AGMT NO. 2016-354 - With Michael & Morgan Liti, HPPA No. 2016-17, 524 E. Virginia Ave. (Barlow-Caltis House), 6:0 (Schaefer absent); 8. AGMT NO. 2016-355 - With Moir Family Trust, HPPA No. 2016-18,1210 W. River Lane (Dr. Geddes House), 6:0 (Schaefer absent); 9. AGMT NO. 2016-356- With Karen O'Callaghan and Frank Godden, HPPA No. 2016-19, 2402 N. North Park Blvd. (Wener House), 6:0 (Schaefer absent); CITY COUNCIL MINUTES 12 DECEMBER 6, 2016 10A-12 10.AGMT NO. 2016-357 - With Robyn MacNair, HPPA No. 2016-20,1123 N. Olive St. (Urbine House) 6:0 (Schaefer absent); 11.AGMT NO. 2016-358 - With Giovanna Piazza, HPPA No, 2016-23, 2318 N. Bonnie Brae (Yeagle House), 6:0 (Schaefer absent); 12.AGMT NO. 2016-359 - With Brad & Beth Harkins, HPPA No. 2016-27, 1825 N. Ross St. (Oakes House), 5:0 (Murashie abstained, Schaefer absent); and 13.AGMT NO. 2016-360 - With Blake Bailey, HPPA No. 2016-28, 2435 N. Riverside Dr. (Stanley Bailey House), 6:0 (Schaefer absent). 25C. AGMT NO. 2016-361 - PURCHASE, INSTALLATION, AND SUPPORT OF MOBILE IN -CAR COMPUTER EQUIPMENT FOR THE POLICE DEPARTMENT (RFP. NO.16-122) (STRATEGIC PLAN NO. 1,2C) - Police Department MOTION: Authorize the City Manager and Clerk of the Council to execute a five-year agreement with CDCE Inc., commencing December 7, 2016, in an amount not to exceed $1,097,771.56, and an additional $75,000 contingency totaling $1,172,771.56, terminating on February 17, 2021, subject to non -substantive changes approved by the City Manager and City Attorney. 25D. APPROVE TENANT -INTEREST PURCHASE AGREEMENTS FOR BRISTOL STREET IMPROVEMENTS, PHASE 3A (PROJ. NO. 136792 NONGENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3, 2C) - Public Works Agency MOTION: Authorize the City Manager and Clerk of the Council to execute purchase agreements of Tenant Interest in the properties listed below and goodwill (if any) with the following property owners, subject to non - substantive changes approved by the City Manager and City Attorney (Property Owner, Address, and Amount): 1. AGMT NO. 2016-362 - With Phuc Duc Nguyen; 1111 N Bristol Street, Suite C, Nails Pro (APN 405-274-10); $16,357; 2. AGMT NO. 2016-363 - With Reyna Talavera; 1111 North Bristol Street, Suite E, Queen's Beauty Salon (APN 405-274-10); $26,940; and 3. AGMT NO. 2016-364 - With Hugo Solorzano Hernandez, 1111 North Bristol Street, Suite H, Computer Repair (APN 405-274-10); $41,290. CITY COUNCIL MINUTES 13 DECEMBER 6, 2016 10A-13 25E. AGMT NO. 2016-365 - APPROVE PURCHASE AGREEMENT FOR REAL PROPERTY ACQUISITION FOR BRISTOL STREET IMPROVEMENTS PHASE 4 (PROJECT NO. 116741, NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3, 2C) - Public Works Agency MOTION: Authorize the City Manager and Clerk of the Council to execute Purchase Agreement for the real property acquisition, temporary construction easement, and goodwill (if any) with property owner listed below, subject to non -substantive changes approved by the City Manager and City Attorney with property owner(s) Louella May McNeal, Leslie Maureen McNeal, Marlene Leigh McNeal and James H. McNeal III, Co - Trustees of the J. Walter Schaefer Testamentary Trust, for the property located at 2215 & 2219 S. Bristol Street (APN 015-194-38 & 39); for a full acquisition in an amount of $1,108,700. MISCELLANEOUS - BUDGET 29A. DONATION AGREEMENT TO SUPPORT A LECTURE SERIES (STRATEGIC PLAN NO. 5, 4) - Councilmember Amezcua MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with EI Centro Cultural de Mexico for a one-time donation amount of $750, subject to non -substantive changes approved by the City Manager and the City Attorney. 29B. DONATION AGREEMENT TO SUPPORT A LECTURE SERIES {STRATEGIC PLAN NO. 5, 41 - Mayor Pro Tem Sarmiento MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with EI Centro Cultural de Mexico for a one-time donation amount of $500, subject to non -substantive changes approved by the City Manager and the City Attorney. 29C. DONATION AGREEMENT TO SUPPORT THE "FAMILIES HELPING FAMILIES CAMP HEART' EVENT {STRATEGIC PLAN NO. 5, 4) - Councilmember Amezcua MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with the Orange County Child Abuse Prevention Center for a one-time donation amount of $750, subject to non -substantive changes approved by the City Manager and the City Attorney. 29D. DONATION AGREEMENT TO SUPPORT A BASEBALL TOURNAMENT (STRATEGIC PLAN NO. 5, 4) - Councilmember Amezcua CITY COUNCIL MINUTES 14 DECEMBER 6, 2016 1 OA -14 MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Santa Ana Pony Baseball, Inc. for a one-time donation amount of $700, subject to non -substantive changes 29E. DONATION TO SUPPORT HOOVER ELEMENTARY SCHOOL'S MOVIE NIGHT EVENT {STRATEGIC PLAN NO. 5, 4} - Councilmember Amezcua MOTION: Approve a donation request from Hoover Elementary School for a one-time donation in the amount of $300. 29F. DONATION TO SUPPORT WILSHIRE SQUARE NEIGHBORHOOD ASSOCIATION'S ANNUAL PARADE {STRATEGIC PLAN NO. 5, 4} - Mayor Pulido MOTION: Approve a donation request from Wilshire Square Neighborhood Association for a one-time donation in the amount of $2,900. LAND USE MATTERS CONDITIONAL USE PERMIT/VARIANCES 31 A. CONDITIONAL USE PERMIT NO. 2016-38 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR OFF -PREMISE CONSUMPTION AT ALDI GROCERY STORE LOCATED AT 2840 SOUTH BRISTOL STREET - DOUG COUPER, APPLICANT (STRATEGIC PLAN NO. 3, 2) - Planning and Building Agency Planning Commission approved recommended action on November 14, 2016, by a vote of 6-0 (Mendoza absent). MOTION: Receive and file the staff report approving Conditional Use Permit No. 2016-38. **END OF CONSENT CALENDAR** PUBLIC COMMENTS The following members spoke in support of the proposed Sanctuary City resolution: • Carlos Perea, recognized City and protections it deserves; propose that no resources be used for mass deportation as proposed by incoming US President, and police oversight. • Annie Lai, representative of UCI Immigrant Rights, spoke on legality and funding of sanctuary city resolution. CITY COUNCIL MINUTES 15 DECEMBER 6, 2016 10A-15 • Denise Hinojosa, support legislation as proposed. • Faby Jacome, deportation defense organizer with OCIYU, request that City not provide legal status information; supports efforts by the City. • Emma Sophia Gonzalez, expressed strong support and requested support not just symbolic. • Ruben Barreto, Santa Ana Building Healthy Communities, support matter before the City Council. • Roberto Herrera, support stronger language and empower immigrant community; requested campaign contribution reform in addition to strong support of resolution. • Hairo Cortes, stronger protections and inclusion of commission to address transparency as it relates to sanctuary designation; support short timeline on closing of ICE jail; also supports district elections. • S. G. Sarmiento, member of NOLON, support resolution. • Alexis Nana Teodoro, thanked the City Council for being present and responsive to the community; look forward to continued relationship with the City Council on addressing unintended consequences. • Eldauah Arango, CIVIC representative, consider ordinance rather than resolution and include creation of a commission; opined that City will be a sanctuary city when it terminates its ICE contract. • Christina Fiolho, attorney for CIVIC, commend City for positive strides; reduction of ICE number of beds but requested specific timeline, create commission and approve as ordinance. • Asmaa Ahmed, policy advocate at LAIR -LA, support resolution that will; protect rights of all residents and making it law by January 20, 2017. • Jose Servin, support 55G and 65A, indicated that both go hand in hand. • Grecia Galeana, member of Las Cristartema, stop criminalization of undocumented residents. • Gema Suarez, member of OC May Day Coalition member, need to protect families and cancel ICE contract. • Kara Rivera, support making proposal a law — to ensure safety of all residents. • Brayan Cruz, member of IYU, demand task force to address Sanctuary City rights. • Cassandra Radclif, support keeping families together. • Catherine Quinn, community health nurse, supports proposal. • America Bracho, Latino Health Access, supports proposal; city needs to fight perception; need accountability and supports district elections. • Victor Valladares, supports creation of oversight commission. • Luis Gomez, immigration resource manager at Lesbian Gay Bisexual and Transgender (LGBT) Center, opined that legislative needs to be more comprehensive. • Sandra Ortega, Clergy Lady United, establish a blue ribbon commission and provide timeline to end ICE contract and empower youth; • David Carbajal, take stand with residents and end ICE contract. • Martin Lopez, union representative, supports district based elections and end ICE contract. Mayor Pro Tem Sarmiento, at the request of the City Manager requested a revote on Consent Calendar items to assure that required 5 votes received on all appropriation adjustments. Vote reflected under Consent Calendar. CITY COUNCIL MINUTES 16 DECEMBER 6, 2016 10A-16 • Jan Meslin, Director of CIVIC, adopt proposal as an ordinance and establish oversight commission. • Norma Cordero, Latino Health Access Advocate, spoke on behalf of domestic violence victims, supports proposal to protect all rights. • Tina Shull, reiterated 3 asks as proposed by other speakers. • Leonel Velasquez, OCCOC, opposed to separating families. • Mayre Tapia, in support of matter. • Bryan Tapia, echoed comments from others heard earlier. • Kimberly Gomez, urged all to oppose separating families. • Cristina Castillo, mother of US Citizens, need to protect family — dignity and not fear. • Crystal Gomez, supports family unity; stop contract with ICE. • Reverand Lurs Alemm, supports action proposed; City cannot be ruled by fear. • Marilyn Montano, city needs to take pro -active measures; supports termination of ICE contract. • Gaby Hernandez, expressed concern that some that some who have voiced opposition have been target; need to change culture. • Benjamin Vazquez, City needs to protect our families. • Peter Katz, recounted historical accounts when groups were persecuted; supports proposal. Benavides, thanked speakers. Mayor Pro Tem Sarmiento, indicated that he was made aware that not all members of the public were informed of limited speaker time, thus allowed the following to comment on Agenda Item 55G. • Saul Ocampo, spoke in support of resolution. • Debbie Pacheco, support district based elections. • Adriana Cortes Luna, end all ties with ICE, City needs to prioritize families • Teri Saydak, supports proposal. • James Goebel, also echoed same sentiments expressed earlier. • Sara Sorentino, supports sanctuary city designation. • Francisco Pino, advocate of proposal. • Edna Monroy, spoke in favor of resolution. • Jose Morales, member of OC Immigrants United, urge all to consider adoption of an ordinance and opposition to ICE contract. • Gil Salmon, commend City Council for taking action and labeling Santa Ana a Sanctuary City; fair treatment of all important - respect; also noted that all comments by members of the community need to be considered and respected. • Dylan Thompson (another resident spoke on his behalf), echoed comments by Gaby Hernandez; City Council to have political courage and challenged all to find revenue elsewhere and terminate the ICE contract. BUSINESS CALENDAR ITEMS CITY COUNCIL MINUTES 17 DECEMBER 6, 2016 10A-17 RESOLUTIONS 55A. APPROVE THE RELOCATION PLAN FOR THE SANTA ANA ARTS COLLECTIVE PROJECT LOCATED AT 1666 N. MAIN STREET {STRATEGIC PLAN NO 5, 3C} - Community Development Agency MOTION: Adopt a resolution. RESOLUTION NO. 2016-087 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE RELOCATION PLAN FOR THE SANTA ANA ARTS COLLECTIVE PROJECT LOCATED AT 1666 N. MAIN STREET MOTION: Tinajero SECOND: Amezcua VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 55B. YOUTH SOCCER AND RECREATION DEVELOPMENT PROGRAM GRANT APPLICATION {STRATEGIC PLAN NO. 5, 4A} - Parks, Recreation and Community Services Agency MOTION: Adopt a resolution. RESOLUTION NO. 2016-088 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE APPLICATION FOR YOUTH SOCCER AND RECREATION DEVELOPMENT PROGRAM GRANT FUNDS MOTION: Tinajero VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Reyna Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) None (0) None (0) Martinez, Pulido (2) CITY COUNCIL MINUTES 18 DECEMBER 6, 2016 10A-18 55C. ADOPTION OF MEASURE M2 YEAR-END EXPENDITURE REPORT TO CONTINUE RECEIVING COMPREHENSIVE TRANSPORTATION FUNDING PROGRAMS FUNDS (STRATEGIC PLAN NO. 6, 1 G) - Public Works Agency MOTION: Adopt a resolution. RESOLUTION NO. 2016-089 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADOPTING THE FY 2015/16 MEASURE M2 EXPENDITURE REPORT FOR THE CITY OF SANTA ANA MOTION: Tinajero SECOND: Benavides VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 55D. FISCAL YEAR 2017/18 GRANT APPLICATIONS MEASURE M2 COMPREHENSIVE TRANSPORTATION FUNDING PROGRAM (STRATEGIC PLAN NO. 6, 1 G) - Public Works Agency MOTION: 1. Adopt a resolution. RESOLUTION NO. 2016-090 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE SUBMITTAL OF IMPROVEMENT PROJECTS TO THE ORANGE COUNTY TRANSPORTATION AUTHORITY FOR FUNDING UNDER THE COMPREHENSIVE TRANSPORTATION PROGRAM 2. Direct staff to amend the Seven -Year Capital Improvement Program to incorporate the Comprehensive Transportation Funding Program projects. MOTION: Amezcua SECOND: Reyna VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) CITY COUNCIL MINUTES 19 DECEMBER 6, 2016 10A-19 55E ABSENT: Martinez, Pulido (2) AGREEMENT FOR OFFICIAL DEPOSITORY SERVICES ("BANKING SERVICES") {STRATEGY PLAN NO. 4,1} - Finance and Management Services MOTION: 1. Adopt a resolution. RESOLUTION NO. 2016-091 -A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA DESIGNATING JP MORGAN CHASE BANK, N.A., AS THE DEPOSITORY FOR CITY OF SANTA ANA FUNDS, EFFECTIVE JANUARY 1, 2017, AND DESIGNATING SIGNATORIES AUTHORIZED FOR THE PURPOSE OF WITHDRAWAL OF SAID FUNDS 2. AGMT NO. 2016-366 - Authorize the City Manager and the Executive Director of Finance and Management Services Agency to execute a banking services agreement with JPMorgan Chase Bank for an initial three-year term beginning January 1, 2017 through December 31, 2019, for an amount not to exceed $65,000 annually, with a provision for a single two-year extension exercisable by the City Manager and the City Attorney subject to non -substantive changes approved by the City Manager and the City Attorney, with provision for payment of claims for a six month period following the termination of said amended agreement. Any price changes for optional years four and five must be agreed upon by the both parties during the third year. In the event price changes exceed initial pricing, exercise of the option to extend the Agreement shall be subject to City Council approval. MOTION: Tinajero SECOND: Amezcua VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 55F. ESTABLISH A CITY COUNCIL POLICY ON THE DISPLAY OF FLAGS AT CITY FACILITIES; AUTHORIZING THE ANNUAL DISPLAY OF THE PRIDE FLAG AT CITY HALL {STRATEGIC PLAN NO. 5, 6F} - City Manager's Office MOTION: Adopt resolutions. CITY COUNCIL MINUTES 20 DECEMBER 6, 2016 1 OA -20 RESOLUTION NO. 2016-092 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADOPTING CITY COUNCIL POLICY ON THE DISPLAY OF FLAGS AT CITY FACILITIES RESOLUTION NO. 2016-093 - A RESOLUTION OF THE CITY COUNCIL FO THE CITY OF SANTA ANA AUTHORIZING THE ANNUAL DISPLAY OF THE PRIDE FLAG AT CITY HALL TO COMMEMORATE HARVEY MILK DAY AND LESBIAN, GAY, BISEXUAL, AND TRANSGENDER (LGBT) PRIDE MONTH MOTION: Amezcua SECOND: Tinajero VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 55G. DECLARE THE CITY OF SANTA ANA A SANCTUARY FOR ALL ITS RESIDENTS, REGARDLESS OF THEIR IMMIGRATION STATUS (STRATEGIC PLAN NO. 5, 6F) - City Manager's Office Councilmember Reyna, thanked Benavides for bringing matter forward; supports item; noted that fear is real although tangible consequences are not clear. Councilmember Tinajero, spirit of the law is that you represent the area in which you run; proposed adopting resolution and set as an ordinance at the following meeting and hold all councilmembers accountable to the community and protect the rights of all. Change section 4 to "will establish a commission'; concerned that Trump's advisor is Steve Bannon who is anti -semantic and urged all to be engaged. Mayor Pro Tem Sarmiento, indicated that City has an immigrant family, will continue to treat all residents with dignity and protection remains the same. AMENDED MOTION: Adopt amended resolution and schedule introduction of ordinance for consideration at the next regular meeting. RESOLUTION NO. 2016-086 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA DECLARING THE CITY OF SANTA ANA A SANCTUARY FOR ALL ITS RESIDENTS, REGARDLESS OF THEIR IMMIGRATION STATUS MOTION: Benavides SECOND: Tinajero CITY COUNCIL MINUTES 21 DECEMBER 6, 2016 1 OA -21 VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) REPORTS 65A. UPDATE ON THE IMMIGRATION AND CUSTOMS ENFORCEMENT CONTRACT FOR DETAINEE SERVICES AND THE SANTA ANA JAIL AND OPTIONS FOR EXPEDITED PHASE OUT {STRATEGIC PLAN NO. 1, 4A} - City Manager's Office and Police Department The following spoke on the matter: • Jennifer Rojas, representing ACLU, support ending contract by January 20th. • Magaly Mendez, asked for a timeline to end the contract. • Roxana Rosas, supports termination of contract. • Emma Sophia Gonzalez, member of Las Flores, transgender group, supports closing of ICE. Councilmember Benavides, indicated that City will release a Request for Qualifications; Council has taken previous action on the matter moving towards termination of contract; City Manager Cavazos, indicated that jail does have some booking and processing purpose, but the contract with ICE will slowly end. Councilmember Benavides, proposed an evaluation committee in February to evaluate reuse timeline and take further action that may expedite termination. City Manager Cavazos, summarized fiscal impacts including about 16 employees that would be impacted; and debt is about $3 million a year until 2024. Councilmember Amezcua, asked if some correctional officers may be able to train as code enforcement officers or other related positions. Councilmember Tinajero, summarized that City Manager may transfer some correctional officers to other positions such as code enforcement or related; City Council has strong support for the police officers, suggest that police union build community relations; supports phase-out of ICE contract. Mayor Pro Tem Sarmiento, thanked City Manager for providing data; matter is not reflection or referendum of police officers or department, strong support for CITY COUNCIL MINUTES 22 DECEMBER 6, 2016 1 OA -22 ma law enforcement and public safety; have compelling reason to remove City from jail business; may need to expand contract with US Marshal Office; may have a $2 million deficit if ICE terminates contract. MOTION: 1. Notify Immigration and Customs Enforcement (ICE) that the City, per the terms of the existing agreement, will be reducing the ICE detainees to a maximum capacity of 128. This action would result in the closure of one module. After the reduction in revenue and decreased cost, the annual net revenue loss is $663,743. 2. Continue the practice of hiring part-time correctional officers per the jail operations phase out plan as previously agreed upon with the Santa Ana Police Officers Association in 2014. 3. Continue to negotiate with the Santa Ana Police Officers Association on retirement incentives. 4. Release the Jail Re -Use Request for Qualifications (RFQ) based on input from 12 community meetings. MOTION: Reyna SECOND: Benavides VOTE: AYES: Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) APPOINT A REPRESENTATIVE TO THE ORANGE COUNTY WATER BOARD - Clerk of the Council Office Councilmember Reyna nominated Mayor Pro Tem Sarmiento for a term effective December 21. 2016. There were no other nominations. MOTION: Appoint Mayor Pro Tem Sarmiento to the Orange County Water District effective December 21, 2016. MOTION: Reyna SECOND: Benavides VOTE: AYES: Amezcua, Benavides, Reyna, Tinajero (4) NOES: None (0) CITY COUNCIL MINUTES 23 DECEMBER 6, 2016 1 OA -23 ABSTAIN: Sarmiento (1) ABSENT: Martinez, Pulido (2) PUBLIC HEARINGS 75A. ZONING ORDINANCE AMENDMENT NO. 2016-04 TO AMEND PROVISIONS OF CHAPTER 41 OF THE SANTA ANA MUNICIPAL CODE RELATING TO UNDERGROUND UTILITY INSTALLATIONS — CITY OF SANTA ANA, APPLICANT {STRATEGIC PLAN NOS. 3, 2; 5, 31 - Planning and Building Agency Planning Commission approved recommended action on November 14, 2016 by a vote of 7-0. Legal Notice published in the Orange County Reporter on November 25, 2016 and notices mailed on November 23, 2016. Mayor Pro Tem Sarmiento 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 -2906 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO PROVISIONS OF CHAPTER 41 OF THE SANTA ANA MUNICIPAL CODE RELATING TO THE REQUIREMENT OF UNDERGROUND UTILITY INSTALLATIONS MOTION: Benavides SECOND: Amezcua VOTE: AYES: Amezcua, Benavides, Sarmiento, Tinajero (4) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido, Reyna (3) 75B. AMENDMENT APPLICATION NO. 2016-04 TO REMOVE AND REPLACE THE CITY OF SANTA ANA ZONING SECTIONAL DISTRICT MAPS, CITY OF SANTA ANA - APPLICANT {STRATEGIC PLAN NOS. 3, 2; 7, 21 - Planning and Building Agency Planning Commission approved recommended action on November 14, 2016 by a vote of 7-0. CITY COUNCIL MINUTES 24 DECEMBER 6, 2016 1 OA -24 Legal Notice published in the Orange County Reporter on November 25, 2016 and notices mailed on November 23, 2016. Mayor Pro Tem Sarmiento 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 -2907 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REPLACING THE CITY OF SANTA ANA ZONING SECTIONAL DISTRICT MAPS INTO A NEW GRAPHIC FORMAT MOTION: Amezcua SECOND: Tinajero VOTE: AYES: Amezcua, Benavides, Sarmiento, Tinajero (4) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido, Reyna (3) 75C. CONTINUED - FIRST AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2015-03 FOR THE HERITAGE VILLAGE MIXED-USE DEVELOPMENT AT 2001 EAST DYER ROAD — PAMELA SAPETTO, APPLICANT {STRATEGIC PLAN NO. 5, 3) — Planning and Building Agency Planning Commission approved recommended action on November 14, 2016 by a vote of 5-1 (Gartner dissented; Bacerra abstained). Legal Notice published in the Orange County Reporter on November 25, 2016. Matter continued to December 20, 2016 City Council meeting at the request of staff. 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. 85A. CONSIDERATION OF ESTABLISHING DISTRICT ELECTIONS — Mayor Pro Tem Sarmiento, Councilmember Amezcua and Councilmember Tinajero Councilmember Tinajero, indicated that community is in support of district elections; campaign finance reform also needed. CITY COUNCIL MINUTES 25 DECEMBER 6, 2016 1 OA -25 Angie Blas, spoke in support of the matter; proposed additional change to the Charter to Article 4 (30 -day residency requirement) to be revised and included; councilmember needs to be more engaged and informed. Councilmember Amezcua proposed changing residency requirement to 1 year. Councilmember Reyna, noted that accountability measures are not available; residents need to be engaged; if change to district elections may increase number of candidates. Mayor Pro Tem Sarmiento, thanked Councilmember Tinajero for bringing matter forward; AMENDED MOTION: Direct staff to provide the following at the December 20, 2016 City Council meeting: 1. An evaluation of various municipal election systems, including at - large systems, district systems, and mixed systems. 2. The process of transitioning the City of Santa Ana's municipal election system from its current at -large system to a district system. 3. Options to hold a Special Election in 2017 to present a ballot initiative to change the current election system from at -large elections to district elections. 4. Include provisions to change residency requirements to one year. MOTION: Tinajero VOTE: AYES: NOES: ABSTAIN: ABSENT: WORK STUDY SESSION SECOND: Amezcua Amezcua, Benavides, Reyna, Sarmiento, Tinajero (5) None (0) None (0) Martinez, Pulido (2) WS -1 COMMUNITY LAND TRUST: WORK STUDY SESSION AND POSSIBLE ACTION TO SUPPORT THE ESTABLISHMENT AND PARTNERSHIP OF A LOCAL COMMUNITY LAND TRUST - City Manager's Office Deputy City Manager Robert Cortez, presented staff report as discussed at the Development Council Committee CITY COUNCIL MINUTES 26 DECEMBER 6, 2016 1 OA -26 The following spoke on the matter: • Linda Linkering, member of CLUE, spoke in support of partnership. • Luis Sarmiento, request consideration of vacant land on Lacy and Walnut be considered. • Joese Hernandez, OCCORD representative, supports matter, need to include housing and allow for equitable wages. • Apolonio Cortez, opined that it will improve community health and serve area well. • Isuri Ramos, representing Kennedy Commission, opined that proposal will support families and increase affordable housing opportunities • Michele Zuniga, UCI, spoke of recreational spaces and • Alan Woe, noted that private investment is needed as reinvestment • Esther Trinidad, Parques Verdes, requested support to allow them to have livable wages; submitted petitions for consideration that have been signed by 175 residents; • Ugoshi Anabere Nicholson, attorney at the Public Law Center, represent interest for the benefit of homeless Councilmember Benavides, indicated that Development Committee has reviewed item in depth; City evaluated all city -owned vacant properties Councilmember Amezcua, supports matter. Councilmember Reyna, indicated that in the past developers have obtained land and benefits Mayor Pro Tem Sarmiento, indicated that City Manager has received direction to move forward; thanked staff for working with community; consider pocket parks and small community land trust. RECESSED THE CITY COUNCIL MEETING AT 9:53 P.M. TO THE HOUSING AUTHORITY MEETING AND RECONVENED THE CITY COUNCIL MEETING AT 9:54 P.M. WITH SAME MEMBERS PRESENT. COMMENTS PUBLIC COMMENTS • Michael Klubnikin, impressed with presentation by Councilmember Reyna who thanked his mentors; • James Kendrick, concerned with high speed and lack of traffic mitigation along Broadway Ave. - public safety concerns; also, funding for improvements not included in the capital improvement budget. CITY COUNCIL MINUTES 27 DECEMBER 6, 2016 1 OA -27 90A. CITY MANAGER'S COMMENTS • Thanked the City Council, especially Councilmembers Amezcua and Reyna for their service. 90B. CITY COUNCILMEMBER COMMENTS Councilmember Benavides: • Acknowledged the service of Councilmembers Amezcua and Reyna; pleasure to work with them. Councilmember Reyna: • Urged all to conserve water and shop Santa Ana; and • Thanked mentors, mother and appointed officials. Councilmember Amezcua: • Thanked staff for all of their efforts. Councilmember Tinajero: • Reflected on tenure of Councilmembers Amezcua and Reyna, Mayor Pro Tem Sarmiento: • Indicated that it would be last official meeting of current city council; have made tough decisions; have all made Santa Ana a better place for all; and • Adjourned in memory of former Santa Ana Firefighter Ron Castro and Felipe de Jesus Martinez Nunez ADJOURNED - 10:12 p.m. - To the Special Meeting of Tuesday, December 13, 2016 at 6:00 p.m. in the Council Chamber, 22 Civic Center Plaza, Santa Ana, California. Adjourned in Memory of Firefighter Ron Castro and Felipe de Jesus Martinez Nunez Maria D. Huizar, Clerk of the Council FUTURE AGENDA ITEMS • Community Engagement Program • Drone Regulations CITY COUNCIL MINUTES 28 DECEMBER 6, 2016 1 OA -28 MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA DECEMBER 13, 2016 - 2014-2016 CITY COUNCIL— CALLED OUNCIL— CALLED TO ORDER ATTENDANCE PRESENTATION OF THE COLORS NATIONAL ANTHEM PLEDGE OF ALLEGIANCE INVOCATION COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:08 P.M. COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor VICENTE SARMIENTO, Mayor Pro Tem ANGELICA AMEZCUA P. DAVID BENAVIDES MICHELE MARTINEZ ROMAN A. REYNA SAL TINAJERO COUNCILMEMBERS Absent: None STAFF Present: DAVID CAVAZOS, City Manager JOHN FUNK, Assistant City Attorney MARIA D. HUIZAR, Clerk of the Council HONOR GUARD, SANTA ANA POLICE DEPARTMENT ASHELY FERRAEZ DIAZ, ORANGE COUNTY SCHOOL OF THE ARTS DIEGO SOLORIO AND DANIELA VILLEGAS BOB BARNETT, POLICE CHAPLAIN CITY COUNCIL MINUTES 1 DECEMBER 13, 2016 1OB-1 PUBLIC COMMENT - Marilyn Montano, expressed concern with election results and involvement of police union. RESOLUTION 55A ADOPT RESOLUTION DECLARING THE NOVEMBER 8, 2016 GENERAL MUNICIPAL ELECTION RESULTS OF CITY MEASURE AND THE ELECTION OF CERTAIN OFFICERS RECOMMENDED ACTION: Adopt a resolution. RESOLUTION NO. 2016-094 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA DECLARING THE RESULTS OF THE GENERAL MUNICIPAL ELECTION HELD ON NOVEMBER 8, 2016 MOTION: Martinez VOTE: AYES: NOES: ABSTAIN ABSENT: PRESENTATIONS SECOND: Amezcua Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) None (0) None (0) None (0) • PROCLAMATION presented by MAYOR PULIDO AND CITY COUNCIL to COUNCILMEMBER ANGELICA AMEZCUA for her exceptional service to the residents of the City of Santa Ana during their tenure, 2012-2016. • PROCLAMATION presented by MAYOR PULIDO AND CITY COUNCIL to COUNCILMEMBER ROMAN REYNA for his exceptional service to the residents of the City of Santa Ana during their tenure, 2012-2016. CLOSING REMARKS Councilmember Amezcua, recognized family, friends, staff and all of her colleagues for support during her term. Councilmember Reyna, thanked parents for allowing him to dream and voters for allowing him the pleasure of serving on the City Council; will continue to serve the community in other capacities; thanked many residents for support. CITY COUNCIL MINUTES 2 DECEMBER 11, 2012 10 B-2 Mayor Pulido turned the Chair to Clerk of the Council Huizar. OATHS OF OFFICE ADMINISTERED TO: NAME TITLE BY Miguel A. Pulido Mayor Clerk of the Council, Maria Huizar Vicente Sarmiento Councilmember, Ward 1 Eva Casas Sarmiento Jose Solorio Councilmember, Ward 3 Clerk of the Council, Maria Huizar Juan Villegas Councilmember, Ward 5 Ismael Navarro Clerk of the Council Huizar returned the Chair to Mayor Pulido. - 2016-2018 CITY COUNCIL - CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:37 P.M. ATTENDANCE REGULAR BUSINESS ITEM COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor P. DAVID BENAVIDES MICHELE MARTINEZ VICENTE SARMIENTO JOSE SOLORIO SAL TINAJERO JUAN VILLEGAS COUNCILMEMBERS Absent: None STAFF Present: DAVID CAVAZOS, City Manager JOHN FUNK, Assistant City Attorney MARIA D. HUIZAR, Clerk of the Council 65A ELECTION OF MAYOR PRO TEM Mayor Pulido nominated Councilmember Michele Martinez, seconded by Councilmembers Solorio and Tinajero. There were no other nominations. By acclamation the City Council elected Michele Martinez as Mayor Pro Tem. CITY COUNCIL MINUTES 3 DECEMBER 11, 2012 10 B-3 CLOSING REMARKS Councilmember Sarmiento: Thanked all present; humbled to be reelected and serve his third and final term; acknowledged family and allowing him to serve — wife Eva, sons Adrian and Diego, daughter Dalia and mother; reflected on challenging election season; highest vote getter; thanked colleagues for making tough decisions that will to make City great; recognized family vising from Bolivia. Councilmember Solorio: Honored to be back on the City Council; held position on the Assembly for six years; reflected on his former service on the City Council, warmly received back and grateful to be back; will use state and regional experience; public safety is first priority; City has lowest median age in the Country, supports our education system, teachers and needs to be a priority of City and will be his priority; some areas of the City are neglected; lots of needs throughout, plan on spending time and resources in every neighborhood; thanked family for allowing him to make public service a lifelong commitment; presented Lynn, and son Diego, son Michael is studying at Stanford. Councilmember Villegas: Thanked all in attendance; thanked voters; parents; look forward to serving with this City Council; noted that he has taken oath on several occasions — served in the military; as a sheriff officer and now as an elected official; will serve to the best of his ability; will dedicate his service to his daughter, Daniela. Mayor Pulido: Thanked the voters; priority will continue to be public safety; City has come a long way - Streetcar project will reposition and reinvigorate the City; momentum for greatness, propose to have Bowers Museum partner with Louvre Museum; City has infrastructure needs Councilmember Benavides: Congratulated the Mayor on re-election and newly elected councilmembers; thanked and acknowledged the service of outgoing Councilmembers Amezcua and Reyna for their dedication and service to this community. Mayor Pro Tem Martinez Congratulated all newly elected and re-elected officials; thanked Councilmembers Amezcua and Reyna for service; look forward to working with Roman Reyna in other endeavors who has always had a heart for public service and the best interest in the youth in our community; Angelica Amezcua for her service as teacher and raising a young family; reflected on the past 10 years; city council have an obligation and responsibility to be good stewards; need to respect one another, heal and move forward; encourage the community to be involved; thanked staff; all have best interest of the community at heart. CITY COUNCIL MINUTES 4 DECEMBER 11, 2012 10 B-4 Councilmember Sarmiento: Congratulated two new councilmembers and look forward to working with all; will miss Councilmembers Amezcua and Reyna for their diligence and stepping up when difficult decisions arose; congratulated Mayor Pro Tem Martinez wished her all the best - vested with important role. Councilmember Tinajero: Congratulated all elected and re-elected officials and Mayor Pro Tem Martinez; value abilities that all bring to the dais; noted that Councilmembers Reyna and Amezcua helped the City avoid bankruptcy; two new members are leaders in different areas — Councilmember Solorio experience in Sacramento and Councilmember Villegas in law enforcement; community is ever changing and evolving; need to continue to move City forward; welcome new councilmembers and congratulate Mayor. Councilmember Solorio: Acknowledged Rancho Santiago Community College District members John Hanna and Zeke Hernandez. Mayor Pulido: Acknowledged Zeke Hernandez's persistence - believes in the City, ran on several occasions and was finally elected. ADJOURNED- 7:05 p.m. - The next regular meeting of the City Council is scheduled for Tuesday, December 20, 2016 at 5:00 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. INSTALLATION RECEPTION The Estate on Second 2072 "d Street Santa Ana, CA 92701 Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES 5 DECEMBER 11, 2012 1 OB -5 REQUEST FOR COUNCIL ANION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: SECOND READING ORDINANCE: ZONING ORDINANCE AMENDMENT NO. 2016-04 TO AMEND PROVISIONS OF CHAPTER 41 OF THE SANTA ANA MUNICIPAL CODE RELATING TO UNDERGROUND UTILITY INSTALLATIONS (STRATEGIC PLAN NO. 5, 1) I CITY M&AGER Place ordinance on second reading and adopt. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1®` Reading ❑ Ordinance on 200 Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER On December 6, 2016, the following ordinance was introduced for first reading and City Council authorized publication of title by a vote of 4-0 (Martinez, Pulido and Reyna absent): ORDINANCE NO. NS -2906 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY SANTA ANA APPROVING AN AMENDMENT TO PROVISIONS OF CHAPTER 41 OF E SANTA ANA MUNICIPAL CODE RELATING TO THE REQUIREMENT OF UNDERGROUND UTILITY INSTALLATIONS 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 EXHIBIT: 1. Ordinance No. NS -2906 11 A-1 11 A-2 LS 12.15.16 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO PROVISIONS OF CHAPTER 41 OF THE SANTA ANA MUNICIPAL CODE RELATING TO THE REQUIREMENT OF UNDERGROUND UTILITY INSTALLATIONS 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 Santa Ana Municipal Code (SAMC) requires updates periodically in order to streamline requirements and procedures and/or gain compliance with new state or federal legislation. B. In a continuing effort to establish high-quality development standards and to create a user friendly environment for residents and the business community within the city, the Planning Division is proposing revisions to various sections of Chapter 41. C. After a thorough analysis of the current code requirements in the city, staff identified a code amendment and additions necessary to ensure clear, uniform, and legally consistent regulations for various sections of the SAMC. The proposed changes and additions will enable the City to implement a regulatory framework that both protects the health, safety, and welfare of the city and limits undue strain on home owners, business operators and developers. D. Section 41-626 of the SAMC requires that all utility cables, wires, or feeds be placed underground for certain projects, including new or relocated buildings, additions to existing structures, conversions of buildings to other uses, and changes or increases to services. Currently, this section of the SAMC requires undergrounding of utility cables for any building addition in excess of 25 percent, including residential additions above this threshold. The proposed code amendment would increase the threshold to 50 percent for residential (one -family or two-family/duplex) structures, and would keep the 25 percent threshold for multi -family and non-residential structures. Moreover, the amendment will clarify that the provisions requiring undergrounding of utility cables do not apply when a second/accessory dwelling unit is being constructed E. The City Council has held a noticed public hearing on this Ordinance and has considered all testimony presented thereto. Ordinance No. NS -XXX Page t of 4 11 A-3 THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES HEREBY ORDAIN AS FOLLOWS: Section 2: In order to implement a regulatory framework that both protects the health, safety, and welfare of the city and limits undue strain on homeowners, business operators and developers, Section 41-626 of the Santa Ana Municipal Code is hereby amended such that it reads as follows: Sec. 41-626, . Underground utility installations. (a) Notwithstanding any other provision of the ordinance, all projects described below shall be required to install electrical, telephone, community antenna television and similar service wires or cables which provide direct service to the property being developed, added to, or converted, shall, within the exterior boundary Eines of such property, be installed underground. Conduits required for telephone or community antenna television shall be installed to utility specifications by the electrical permit holder prior to inspection of electrical conduit. (1) When any property is developed with a new or relocated building or structure, (2) When an addition is proposed to a single family residence or duplex in excess of fifty (50) percent of the existing floor area. (3) When an addition is proposed to a multi -family or non-residential structure in excess of twenty-five (25) percent of the existing floor area. (b) For existing single-family and duplex (two-family) structures, a new service meter may be installed without the utility wires and cables being installed underground provided that the new meter to be installed is a dual function service box which may be converted for underground service when appropriate. (c) For existing multifamily, commercial, and industrial structures, a change of service may be permitted with a waiver from the requirements of subsection (a), above, if approved by the planning director. Waivers may be granted if, after a review of aesthetic and technical considerations, a determination is made that environmental or other conditions affecting the site make the underground installation of wires or cables unreasonable or impractical, Requests for waivers shall be in writing on forms provided by the planning department. The decision of the designee may be appealed to the planning commission by filing an appeal application to the planning department within ten (10) days. The decision of the planning commission shall be final. The form and content of the waiver application and appeal application shall be determined by the executive director of the planning and building safety agency. Ordinance No. NS -XXX Page 2 of 4 11 A-4 (d) For existing single-family and duplex (two -unit) structures, a waiver as outlined in subsection (c) may be granted for expansion of the existing structures as referenced in subsection (a), provided no additional dwelling units are created. (e) In addition to the waiver provisions of this section outlined in subsections (c) and (d), minor exceptions may be granted from the requirements of subsection (a) of this section for new or relocated buildings or structures subject to the standards set forth in section 41-638. (f) The requirements of this section shall not apply to construction of new second dwelling units provided, however, that all utility cables or wires between the primary residence and a detached second dwelling unit shall be placed underground. Section 3. In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Therefore, it can be seen with certainty that there is no possibility that the proposed code changes will have a significant effect on the environment. General Rule Exemption No. ER 2016-150 will be filed for this project. 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 Lisa Storck Assistant City Attorney Miguel A. Pulido Mayor 11 A-5 Ordinance No. NS -XXX Page 3 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 11 A-6 Ordinance No. NS -XXX Page 4 of 4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: SECOND READING ORDINANCE: AMENDMENT APPLICATION NO. 2016-04 TO REMOVE AND REPLACE THE CITY OF SANTA ANA ZONING SECTIONAL DISTRICT MAPS {STRATEGIC PLAN NO. 5, 1} CITY MANAGEFO RECOMMENDED ACTION Place ordinance on second reading and adopt. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2"' Reading ❑ implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER On December 6, 2016, the following ordinance was introduced for first reading and City Council authorized publication of title by a vote of 4-0 (Martinez, Pulido and Reyna absent): ORDINANCE NO. NS -2907 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REPLACING THE CITY OF SANTA ANA ZONING SECTIONAL DISTRICT MAPS INTO A NEW GRAPHIC FORMAT 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 EXHIBIT: 1. Ordinance No. NS -2907 11 B-2 Ls 10.31.16 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REPLACING THE CITY OF SANTA ANA ZONING SECTIONAL DISTRICT MAPS INTO A NEW GRAPHIC FORMAT 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. 2016-04 has been filed with the City of Santa Ana to formally remove and replace the City of Santa Ana Zoning Sectional District Maps (SDM) into a new graphic format. B. Amendment Application No. 2016-04 proposes to merely modify and reformat the map legend and page layout of the Sectional District Maps. The replacement Sectional District Maps do not include any changes to zoning boundaries or designations for individual properties; no changes in zoning are being made with this action. C. The new SDM page layout will facilitate the efficient production of zoning maps through the use of Geographic Information System (GIS) technology. Additionally, the SDM legend has been modified to more accurately reflect the zoning districts and related designations. D. The Planning Commission of the City of Santa Ana held a duly noticed public hearing on November 14, 2016, on Amendment Application No. 2016-04 and recommended that the City Council adopt an ordinance approving Amendment Application No. 2016-04. E. The City Council, prior to taking action on this ordinance, held a duly noticed public hearing on December 6, 2016. The City Council also adopts as Request for Council Action dated this matter, findings all facts presented in the December 6, 2016 accompanying G, For these reasons, and each of them, Amendment Application No. 2016-04 is hereby found and determined to be justified by public necessity, convenience, and general welfare. Section 2. In accordance with the California Environmental Quality Act (CEQA) and the State CEQA Guidelines, the proposed project is exempt from further review pursuant to Section 15061 (b)(3), as there is no potential for causing a significant impact on the environment due to the adoption of this ordinance. No Ordinance No, NS-xxx Page 1 of 3 11 B-3 changes to zoning are being made by this project. Categorical Exemption Environmental Review No. 2016-96 will be filed for this project. Section 3. This Zoning Sectional District Maps, from this time forward, may be revised administratively with the approval of the Planning Manager when modifications are limited solely to minor corrections and/or document reformatting. These administrative revisions or modifications to the SDMs and corresponding legend will not impact the zoning for properties and will not include any changes to zoning boundaries or designations for individual properties Section 4. This ordinance shall not be effective unless and until Ordinance No. 2016-� (Amendment Application No. 2016-04) is adopted and becomes effective. If said ordinance is for any reason held to be Invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this 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 adapted 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 APPROVED AS TO FORM: Sonia R. Carvalho City Attorney BY: C- ,�!-d% Lisa Storck Assistant City Attorney 11 B-4 2016. Miguel A. Pulido Mayor Ordinance No. NS-xxx Page 2 of 3 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council; do hereby attest to and certify 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. Date: Clerk of the Council City of Santa Ana 11B-5 Ordinance No. NS-xxx Page 3 of 3 11 B-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: CERTIFICATION AND APPROVAL BY CITY ENGINEER — FINAL TRACT MAP NO. 17715 (4010 WEST MCFADDEN AVENUE) (STRATEGIC PLAN NO. 3,2) CITY MANAGER RF RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED ® As Recommended ® As Amended ® Ordinance on 1't Reading d Ordinance on 2"6 Reading ® Implementing Resolution [] Set Public Hearing For_„_ CONTINUED TO FILE NUMBER This action informs the City Council of the imminent approval of the subdivision based upon the Subdivision Map Act and meeting all of the conditions of approval set by the City. The City Engineer has received Final Tract Map No. 17715 (City Tract Map No. 2015-04) for 4010 West McFadden Avenue (Exhibit 1) from the current owner, Habitat for Humanity of Orange County, Inc., Non -Profit Public Religious, and is in the process of reviewing the map for final approval. This subdivision is approved for condominium, single-family residential development of five units. The Tentative Tract Map No. 17962 was approved by the City Council on January 19, 2016. Pursuant to Section 34-183 of the Santa Ana Municipal Code, the City Engineer shall approve or disapprove the Final Tract Map within 10 days after the City Council meeting of December 20, 2016. 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). FISCAL IMPACT fiscal ifta6t associated with this action. [-rep Ivlousavipour Executive Director Public Works Agency FM/WEG/ac Exhibit 1. Map 17A-1 17A-2 17A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: STRATEGIC PLAN MONTHLY REPORT FOR NOVEMBER 2016 (STRATEGIC PLAN NO. 5, 1) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1®i Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the Strategic Plan Monthly Report for November 2016. DISCUSSION The November 2016 monthly report 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 strategy. The Strategic Plan Monthly Reports are available on the City's website at: http://www.santa-ana.ora/strateaic-planning/ 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 item. 19C-1 19C-2 0 1� ` • • CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: REQUEST FOR PROPOSALS FOR PREPARATION OF TECHNICAL STUDIES AND SERVICES AS PART OF THE SANTA ANA COMPREHENISVE GENERAL PLAN UPDATE (STRATEGIC PLAN NO. 3, 2A; 5, 6) CITY MAN GER 10*uo 17JOYM'N07=1�ZC3�C*7►1 CLERK OF COUNCIL USE ONLY: F.11=001T/CIlf ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the Planning and Building Agency to send a Request for Proposals to qualified consulting firms to provide planning and technical services and support for the preparation of comprehensive General Plan Update for the City of Santa Ana. DISCUSSION Staff is requesting authorization to distribute a Request for Proposals (Exhibit 1) for planning and associated technical services to assist City staff with the preparation of the General Plan update pursuant to the most recent State of California General Plan Guidelines. The recommended contract will be submitted for City Council authorization after review of the proposals has been completed and evaluated by City staff. The City Council committed $2 million to the General Plan Update: $1 million for consultant services and $1 million for salaries. To date, none of the contracted services have been spent. Monies will be spent over a three-year period. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's effort 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), Strategy A (Complete a comprehensive update of the City's General Plan including the development of policies and implementation measures that directly relate to equitable economic development); and Goal #5 - Community Health, Livability, Engagement & Sustainability, and Objective #6 (Focus projects and programs on improving the health and wellness of all residents). 19D-1 Request for Proposals for Preparation of Technical Studies as part of the Comprehensive General Plan Update December 20, 2016 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. Has ni, P Executive Director Planning and Building Agency MM:rb S:\Planning\General Plan 20MConsultantSewices\RFCA RFP GP studies. cc.docx Exhibit: 1. Request for Proposal 19D-2 REQUEST FOR PROPOSAL (RFP) Comprehensive General Plan Update Various Technical Studies and Services (TS) City of Santa Ana, CA Issued: December 20, 2016 Existing Land Use and Build -Out Analysis (TSI) General Plan Videos (TS6) Market and Fiscal Analysis (TS2) Traffic Analysis (TS7) Cultural Heritage Resource Study (TS3) Air Quality & Greenhouse Gas Analysis (TS8) Technical Noise Analysis (TS4) Noise Analysis (TS9) Graphic Design and Web Support (TS5) Urban Design (TS10) DEADLINE FOR SUBMISSION OF PROPOSALS: January 19. 2017 by 5:00 p.m. SEND HARD COPY RESPONSE TO: City of Santa Ana Planning Division Attention: Melanie McCann, AICP 20 Civic Center Plaza, Santa Ana, CA 92702 EXHIBIT 1 1 19D-3 RFP No. 16-xxx I. INTRODUCTION The City of Santa Ana ("the City") is soliciting proposals From professional consulting firms to provide technical assistance in the comprehensive update of the General Plan as described in Scope of Services provided below. The City's General Plan was last comprehensively updated in 1983. Various updates to the City's Land Use Element, Circulation Element, Urban Design Element and Economic Development were completed in 1998. The comprehensive General Plan Update is intended to result in a total of twelve elements to guide the physical development, quality of life, economic health, and sustainability of the Santa Ana community. The planning horizon year for this sustainably new community vision is 2035. Incorporated in 1886, the City of Santa Ana has a rich historical and cultural heritage. The City of Santa Ana is the county seat, and it boasts an eclectic urban environment, burgeoning employment centers, transit hub, historic neighborhoods and downtown, and a rich history dating back to the mid -1800s. These features distinguish Santa Ana as Orange County's downtown. Santa Ana is the 2nd largest of 34 cities in Orange County. Santa Ana experienced a rapid increase of residents between 1980 and 1990 (44 percent), primarily due to in -migration of residents from other countries or areas outside of the City. The estimated City population for the Santa Ana community for 2016 is 342,930. This Request for Proposals (RFP) will allow consultants to respond to one or more of the technical study topics as identified in the Scope of Services on the following pages. For example, a consultant may choose to submit a proposal for only a technical noise study. Multiple proposals submitted on various technical study topic areas shall provide a separate, independent scope and budget for each technical study or service. II. PROJECT DESCRIPTION The City of Santa Ana has commenced a comprehensive update of its existing General Plan (http://www.santa-ana ora/aeneralr)lan/default asD#CurrentGPDocs). This update will be prepared in-house by City staff with the assistance of various consultants. This proposal is a request for consultant services in various technical areas to be utilized by City staff towards the completion of the Draft General Plan. The project will include significant updates to City's General Plan, and is anticipated to be organized into twelve elements or topics. The City of Santa Ana proposes to amend eight of its existing elements and introduce two new elements as part of the update. Two existing elements which include the Circulation and Housing are being amended at this time or will be amended in the coming years. These elements are described and included as Attachment A. 12/1/16 rev 2 m:WCAExb(blo@016ux20-I6Q PGeneral Plan -2xiibitl.dox 19D-4 RFP No. 16-xxx III. SCOPE OF SERVICES The City of Santa Ana is requesting proposals from planning and environmental consulting firms for preparation of a number of individual technical studies as detailed below. The technical studies shall assist in the preparation of the General Plan Elements described above, as well as provide the existing baseline conditions for future General Plan environmental documentation, consistent with established guidelines provided by the Office of Planning and Research General Plan Guidelines and California Environmental Quality Act (CEQA). To the extent possible, the General Plan Update is intended to be "self -mitigating" by way of incorporating mitigation measures as policies and programs. scope and budget for each technical study or service) Existing Land Use and Build -Out Analysis (TS1) Assist City staff in refining existing land use inventory for the conceptual Land Use Envisioning map that presently includes approximately 2,300 acres http://vvww.santa- ana.oro/i)ba/planning/VisioningMaps.asp. The City's existing land uses are organized by assessor parcel, address and Transportation Analysis Zone (TAZ) within the Santa Ana Property Information Network (SAPIN) building permit database. The refined existing land use data will be organized into a GIS database. Tasks include 1) Translating assumptions provided by City staff to calculate conceptual build -out numbers within the Land Use Visioning map area for residential and non- residential development in terms of housing units, population, square feet and employment factors; 2) Developing a build -out model/spreadsheet and analysis of multiple land use alternatives. The SCAG Scenario Planning Model may be utilized as feasible; 3) The model and analysis shall be dynamic and capable of adjustment and modification by City staff; 4) Preparing visual simulations for up to eight (8) Land Use scenario corridor/area alternatives corridor including building massing, scale, infrastructure and transportation improvements. Market and Fiscal Analysis (TS2) Analyze existing market conditions and anticipated fiscal outcomes for Land Use Visioning Map areas proposed to transition from non-residential to residential uses. As appropriate, utilize existing data sources compiled for the City's Economic Development Strategy Plan. A copy of the plan can be viewed here: htt :/p /santq- ana.org/cda/documents/SantaAnaEconomicDevelopmentStrateoicPlanFinal.pdf Cultural Heritage Resource Study (TS3) Prepare citywide Cultural Heritage Resource Study to document existing conditions to inform the proposed new Historic Preservation Element. 12/1/16 rev 3 MWCAEAibWM16v12-20-1641PPCaneml➢Ipu-ExNibifLd.. 19D-5 :1y2armr:Mrrr Technical Noise Analysis (TS4) Establish citywide baseline noise levels for roadway, rail, and fixed noise sources. Graphic Design and Web Support (TS5) Provide graphic design support for General Plan material. Under the direction of staff, assist in refining the General Plan layout, graphics, and visual interest for the General Plan webpage to promote community engagement and understanding of the General Plan Update. Support for General Plan Element document layout and graphics to be provided. General Plan Videos (TS6) Create three (3) separate videos to summarize various general plan work efforts and community engagement. Spanish and Vietnamese subtitle are to be provided for each video production. Technical studies and services one through seven (TSI—TS6) above are to be completed by July 2017, in conjunction with upcoming General Plan Advisory Group meetings which will assist towards the development of the draft General Plan Vision State and Policy Framework. Traffic Analysis (TS7) Conduct a citywide traffic study, analysis and modeling. The overall analysis is to include both Level of Service (LOS) and Vehicle Miles Traveled (VMT) as required to comply with current legislative requirements. Air Quality & Greenhouse Gas Analysis (TS8) Utilizing the traffic study, analyze air quality and greenhouse gas impacts associated with the Land Use Envisioning map. Noise Analysis (TS9) Utilizing the traffic study, analyze noise impacts for roadway, rail, and fixed noise sources associated with the Land Use Visioning map. Urban Design (TS10) Evaluate the existing conditions and context that defines neighborhood character and features citywide and within the Land Use Visioning focus areas. After the Land Use Visioning map alternatives have been identified August 2017, the technical studies and services eight through fifteen (TS7-TS10) shall be completed by between August 2017 and November 2018. The Consultant shall provide technical and environmental services under the direction of City staff. The Consultant will be expected to provide experienced and knowledgeable professional staff. The Consultants' Project Manager and staff shall be responsive and maintain excellent working relationships with City staff, project applicant, property owners, and/or developer. The Consultant shall be committed to provide adequate staffing levels at 12/1/16 rev 19D-6 MWCA ahibltst2010U2-20-1O VP Cenewl Plan - M ibit I.d.cx RFP No. 16-xxx all times in order to adhere to established schedules. The Consultant shall be knowledgeable and expected to be familiar with federal, state and local regulations, policies and procedures as they pertain to all technical studies. In addition, all documentation shall remain consistent with established guidelines provided by the Office of Planning and Research and California Environmental Quality Act (CEQA). It shall be the responsibility of the selected consultant to prepare the technical study or service that complies with the General Plan Office of Planning and Research requirements and appropriate environmental documentation in conformance with the latest provisions (2016) of the California Environmental Quality Act. City staff shall work closely with the consultant in achieving a legally defensible document(s). As part of the proposed General Plan technical studies and environmental documentation, the following shall be addressed. Individual or multiple submissions shall identify the scope of work and related cost estimate by the categories and individual technical study listed below. Phase One: A. Initiation of the Project/Kick-Off: Attend a kick-off meeting to discuss the project with City staff within five working days of receiving a notice to proceed. At this time, staff will present any additional information about the project, discuss any project constraints and issues, and refine the scope and responsibilities. B. Attendance at Meetings: The scope of services requires the selected consultant to work closely with staff in preparing the technical studies and environmental document. The consultant shall budget (at minimum) attendance at the following meetings: One (1) Kick-off meeting with City staff Progress site meetings and progress conference call meetings (as needed based on project scope) C. Deliverables (per submittal): Five (5) Printed Administrative drafts of all documents (technical studies, graphic concepts, maps, etc.) One (1) Printed Final draft of all documents (and electronic version) One (1) Electronic files (USB flash drive or CD including print quality PDF, web ready PDF, editable file) of all final public drafts, and final public technical reports in both Microsoft Word format and editable PDF format. GIS shapefiles for all mapping to be included as applicable. D. Schedule and Timing: Provide a project schedule to identify the staffing and cost estimate to complete the above Technical Studies and Services one through 6 (TS1- TS6) by July 2018. 12/1/16 rev 5 MyRFCAAxhlbilev2016vl2-20-16vRFPGeneral Plan - ExhibitI,doex 19D-7 RFP No. 16-xxx Phase Two: E. Attendance at Meetings: The scope of services requires the selected consultant to work closely with staff in preparing the environmental document. The consultant shall budget (at minimum) attendance at the following meetings: One (1) Kick-off meeting with City staff Progress site meetings and progress conference call meetings (as needed based on project scope) One (1) Planning Commission General Plan & Zoning subcommittee meeting or study session One (1) Planning Commission hearing One (1) City Council hearing F. Deliverables (per submittal): Three (3) Printed Administrative drafts of all documents (technical studies, CEQA documents, etc.) and pdf One (10) Printed Final draft of all documents One (1) Electronic file (Print quality pdf, web ready pdf, editable file) of all administrative draft, final public draft, and final public technical reports in both Microsoft Word format and editable PDF (USB flash drive). GIS shapefiles for all mapping to be included as applicable. Prior to start of work, software and programs used for data collection, documentation and mapping shall be approved by City staff to affirm compatibility with City systems. G. Schedule and Timing: Provide a project schedule to identify the staffing and cost estimate to complete the above Phase Two (TS7-TS10) tasks by November 2018. IV. GENERAL INFORMATION The term of the consultant will begin when the contract is approved by the City Council. A. When appropriate, the City will furnish information in its possession relevant to preparation of the technical studies and environmental documentation. B. The Consultant shall be responsible for retaining data, records and documentation for the preparation of the technical studies and appropriate environmental documentation. These materials shall be made available to the City upon acceptance of the final draft text or at the request of the City. Page 11 of this proposal contains a preliminary list of Reference Material including identifying planning documents and resources. 12/1/16 rev 19D-8 MWCA EOibats 016V2-20-16�PGavaral Ph - E.Mbi[Ldmx RFP No. 16-xxx C. In an effort to promote the hiring and utilization of local businesses/merchants, when selecting a consultant to perform the tasks identified in the following sections, local companies shall be given preference. D. This RFP does not commit the City to pay costs incurred in preparation of a response. The City reserves the right to accept or reject the combined or separate components of this proposal in part or in its entirety. E. All data, documents and other products used or developed during preparation of the technical studies and environmental documentation will become property of the City. All responses to the RFP shall become property of the City. F. 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 will provide only the staff assistance and documentation specifically referred to herein and will not be responsible for any cost or obligation of any kind, which may be incurred by the respondent. G. The City reserves the right to reject and replace any and all subcontractors, and reserves the right to approve all subcontractors. H. Progress review meetings shall be held at intervals deemed appropriate by the City. COORDINATION Coordination with the City, other consultants, and agencies will be required to achieve satisfactory and timely delivery of the final work product. ADDENDA Any subsequent changes in RFP from the date of preparation to date of submittal will result in an addendum by the issuing office. PRIME CONSULTANT RESPONSIBLITIES The selected Consultant will be required to assume responsibilities for all services in their proposal. The selected Consultant will be the sole point of contact with regard to contractual matters, including payment of any and all charges resulting from the Agreement. 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 principal proposer. 12/1/16 rev 7 M:\RPCAExhibits\2016\12-20-16\REPQanam]Pla3i-Exhibltl.dan 19D-9 IC \ • • ... V. GENERAL REQUIREMENTS All work shall be performed in conformance with the latest City of Santa Ana, State Office of Planning and Research, State Department of Transportation, Southern California Association of Governments, Orange County Transportation Authority and other involved agencies' policies, procedures, standards and guidelines. 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 professional appearance, well organized, technically and grammatically correct, checked, dated, and having the author and editor identified. The minimum standard of appearance, organization and content of the documents shall be that of similar types produced by the City and set forth in related City of Santa Ana and other involved agencies' manuals. The Consultant shall modify its work as necessary to meet the level of acceptability defined by the criteria above. VI. PERFORMANCE PERIOD The contract shall begin upon approval by the City Council, and the Consultant shall commence work after notification to proceed by the City. Unless extended by contract amendment, the contract shall terminate on July 1, 2019. The Consultant is advised that any recommendation for contract award is not binding on the City until the Agreement and all pertinent paperwork are fully executed and approved by the City Council. VII. SUBMITTAL INFORMATION AND DEADLINE Proposals are due to the City of Santa Ana Planning Division, M-20, 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, CA 92702 on January 19, 2017 by 5:00 p.m., and made attention to Melanie McCann, AICP, Senior Planner. Proposals received after the date and time specified in this RFP will be rejected by the Agency as non-responsive. Melanie McCann can also be contacted at (714) 667-2746 or via email at MMcCann@santa-ana.org for additional information. Hard copies of the proposals are required; electronic submittals will not be accepted. Note, if a proposal is submitted the consultant team shall make themselves available the week of February 5th 2018 for interviews at the City Hall offices, as needed. VIII. SUBMITTAL REQUIREMENTS The RFP is intended to assess and evaluate each firm's capabilities as they apply to the proposed project. Each firm must address each of the following items in their response to the RFP. 12/1/16 rev 19D-10 IVPWCAExbibils\2016\12-20-16\ PGeneral Plan - Exhibit Ldocx RFP No. 16-xxx A. Statement of Qualifications - In order to maintain uniformity with each Consultant, the Statement of Qualifications must be limited to a maximum of 20 pages (excluding front and back covers, section dividers and resumes). The page limitation includes all appendixes, attachments and supplemental information. The following information is required: 1) Cover Letter: A letter signed by a principal or authorized officer who may make legally binding commitments for the entity. 2) Firm and Personnel Experience: A profile of the firm's experience in producing similar technical studies for environmental documents. The Project Manager/Principal Agent's contact information for the proposed work shall be identified, the associates in -charge when the Project Manager/Principal Agent is absent, and for that of other key personnel. An organization chart identifying only those who will perform work for the proposed project and their brief resume is also required. The project manager shall be the primary contact person to represent your firm and will be the person to conduct the presentation, if invited for an interview. The Consultant shall list the time availability of the project manager and the key personnel on a percentage basis to provide the services requested. Sub consultants, if any, shall be identified and are subject to the same requirements as for the prime Consultant. 3) Submittal of Proposal: a. Three (3) copies of the response to the RFP shall be signed by a company official with the power to bind the company. b. Structure your proposal to include the Scope of Services, Methodologies and Work Products, General Time Schedule and Fees. 4) List of projects: Project list which your firm or personnel have completed within the last five (5) years, similar to the proposed project. Project information should include project description, year completed, client name, along with a person to contact and their telephone number. 5) References: The Consultant shall submit a list of references comprised of a listing of work similar to that identified in the RFP. 6) Special Suggestions/Concerns: Statement containing any suggestions or special concerns that the City should be made aware of, including a project approach necessary for the successful completion of a public project. 7) Accuracy: The proposal must be completely responsive to the RFP. 12/1/16 rev 9 M:VtPCAPxhibltaM16M-20-16WPGenual Plan - Exhibitl.doex 19D-11 RFP No. 16-xxx B. Fee Schedule The Consultant shall furnish a fee schedule for the planning and environmental services. The fee schedule shall depict the hourly rates for the consultant and any sub consultants with an hourly billing rate for each personnel category to be used on the project. And number of hours. Personnel hourly rates shall reflect all costs for office overhead, including phones, cellular phones, vehicles, mileage and other direct and indirect costs. This fee schedule shall reflect all anticipated fee increases. C. 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. IX. PROJECT CONTROL Control of the project shall remain the total responsibility of the City of Santa Ana. X. CONSULTANT SELECTION The City of Santa Ana may designate a Consultant Selection Committee, which will evaluate each proposal based on technical criteria, staffing and qualifications listed within the RFP and make a selection. Final approval of the consultant will be given by the City Council. Xl. METHOD OF PAYMENT The Consultant shall submit a monthly invoice to the City for the services rendered in that month. The invoice shall include a summary, as well as a detailed breakdown of the services, the project title, the tasks, the hours, and hourly rates. XII. PROFESSIONAL SERVICES AGREEMENT The RFP and the consultant's proposal will be attached and become part of the agreement as exhibits. XIII. INSURANCE REQUIREMENTS General liability, automotive, worker's compensation and professional liability insurance are required. The certificate shall include the City of Santa Ana and its officers and employees as insured or additional insured. XIV. DELAYS The City reserves the right to delay scheduled dates if it is to the advantage of the City. 12/1/16 rev 10 IVEWCA exn;mtxUOM12-20-16WP General Plan -Exhibit I.doex 19D-12 RFP No. 16-xxx XV. AFFIRMATIVE ACTION PROGRAM The City has an affirmative action program. Qualified firms including small businesses and businesses owned by Women, Minorities and Disabled persons are encouraged to submit bids or proposals. Contractors shall agree to comply with the City's ordinances and regulations regarding Affirmative Action and Equal Employment Opportunity. REFERENCE DOCUMENTS The following are some of the planning documents and resources available for reference: 1) City of Santa Ana General Plan htW.11www.ci.santa-ana.ca.us/gene�lan/default.asp 2) City of Santa Ana General Plan Land Use Environmental Impact Report (1998). Available Upon Request, Planning Division - EIR No. 97-01 (SCH # 97971058) 3) City of Santa Ana General Plan Circulation Element Update Environmental Impact Report (1998). Available Upon Request, Planning Division - EIR No. 97-02 (SCH # 97971055) 4) Transit Zoning Code (June 2010) haQ.-Ilwww.ci.santa-ana.ca.us/pba/plannina/transit zoning code index.asp 5) Metro East Overlay Zone and Public Realm Plan (March 2007) http://www. santa-ana. ora/pba/planning/MetroEastMixed UseOverlav, asp 6) Harbor Mixed Use Transit Specific Plan Document and EIR (November 2014) http://www.ci.santa-ana.ca.us/harbbori)lan/documents/web HCP Adopted Oct2014.pdf 7) Santa Ana and Garden Grove Transit Vision and Go Local Project Concept Study (May 2008) Fixed Guideway EIR and Supplement httpJ/santaanatransitvision.com/eir.html 8) Santa Ana Climate Action Plan (December 2015) http✓/www.santa- ana.ora/climateactionplan/documents/climate action plan.pdf 9) City of Santa Ana Citywide Design Guidelines 10) Orange County Projections (OCP) 2014 Modified Santa Ana's Employment, Housing and Population by Transportation Analysis Zones (TAZ) Available Upon Request, Planning Division 11) Draft Santa Ana Sewer Master Plan (City Public Works Agency, September 2016) Available Upon Request. 12) Santa Ana Water Master Plan (City Public Works Agency, update underway) Available Upon Request. 12i1/16 rev 11 M'aFCA➢xhlbits2OIR12-30-16WP Genual Plan- ahibit l.dvo 19D-13 RFP No. 16-xxx 13) Storm Drain Master Plan (City Public Works Agency, update underway) Available Upon Request. 14) Santa Ana Strategic Plan (2014/15-2018/19) http://www.santa-ana.org/strategic- plannina/default. asp 15) Santa Ana Arts and Culture Master Plan (2016) http://www.santa- ana, org/cda/ad,�� 16) City of Santa Ana Consolidated Plan http://www.santa- ana. ora/cda/documents/ConsolidatedPlan2015-2019me[geedtoprint.pdf 17) Draft Economic Development Strategic Plan July 7, 2016 http://www.santa- ana. orp/cda/edsp. asp 18) Safe Mobility Santa Ana Plan http://www.santa-ana.orq/smsa/ 19) Santa Ana Downtown Complete Streets Plan http://www.san#a- ana.ora/ completestreets/DowntownTransitZoneComl2leteStreetPlan. asp 20) Santa Ana Central Complete Streets Plan http://Www.santa- ana. orq/cowletestreets/CentralSantaAnaCompleteStreetsPlan. asp 21) The Heritage EIR http://www.ci.santa-ana.ca.us/pba/plannino/TheHeritage.asp 12/1/16 rev 12 MWCA axnmit�016 2-20-16HPGe .lFmn- axi,mm 1.&ax 19D-14 ATTACHMENT A Revised Elements: RFP No. 16-xxx 1) Land Use Element: Modifications to existing land uses will place focus on sustainable infill development along commercial and transit corridors. As part of the early stages of the comprehensive General Plan, Planning Division staff has identified key areas of the City with potential to accommodate future growth as identified in the Land Use Visioning Maps. These conceptual study areas have been incorporated into a visual map which can be located on the City's website: http://www.santa-ana.org/pba/planning/VisioningMaps.asp. 2) Economic Development Element 3) Education, Arts & Culture Element 4) Noise Element 5) Open Space, Recreation & Public Facilities Element 6) Safety Element (includes Seismic Safety) 7) Sustainability Element (Health, Conservation, Water & Energy Management) 8) Urban Design & Architecture Element (Includes Scenic Corridor) New Elements: 9) Human Services Element 10) Historic Preservation Element Other Elements: 11) Circulation (Mobility) Element: The Circulation Element update is anticipated to be completed and adopted in fall 2017, prior to the completion of the comprehensive General Plan Update. This element was initiated in 2014 and was placed on hold until the recent completion of the Santa Ana Safe Mobility Plan that identifies additional street re -designations which promote safe travel and implementation of complete street measures. 12) Housing Element: An updated Housing Element will be adopted in the coming years separate from this comprehensive General Plan Update as the current Housing Element was adopted in 2014 with a planning horizon year of 2021. Unlike other elements, California law requires the Housing Element to be updated every seven years. 12/1/16 rev 13 M:v CALxbiblls@O16v12-20-06WPGenttel Plan -Exhibit l.doex 1901-15 19D-16 CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: DOWNTOWN SANTA ANA BUSINESS IMPROVEMENT DISTRICT METRICS (STRATEGIC PLAN NO. 3,4) CITY WINAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on tat Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO F9I NIIl1iTATI Downtown Development continues to be a top priority for the City. In recent years, downtown Santa Ana has experienced increased investment activity, an increase in property values, and an overall increase in the number of businesses included within the Downtown Business Improvement Distrcit (BID). The Downtown BID, created in 1984, was established as a means of providing the downtown business community with the funding to promote events and create promotional materials, increase the security presence, enhance maintenance of the downtown shopping corridors, and implement streetscape improvements to the area. The attached memo (Exhibit 1) provides a summary of the performance metrics for the Downtown BID. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #3 - Economic Development, Objective 4 (Continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination). FISCAL IMPACT There is no direct fiscal impact associated with this item. Robert`C." Corte2 Deputy City Manager City Manager's Office Exhibit: 1. Memo on Downtown BID Metrics 19E-1 19E-2 MEMORANDUM To: Mayor and City Council Date: November 29, 2016 From: David Cavazos, City Manager Subject: DOWNTOWN SANTA ANA BUSINESS IMPROVEMENT DISTRICT (BID) METRICS This memo provides a summary of the performance metrics for the Downtown BID. BACKGROUND BID ADMINISTRATION To administer the activities of the Downtown Business Improvement District (BID), the City executed operating agreements with Downtown Inc. (DTI) and the Santa Ana Business Council (SABC) in 2013. The Agreements are renewed automatically in one-year renewal terms, unless either party gives at least two months' notice of termination, or if the BID is not approved in any given year. BID FUNDS The BID is funded through an additional charge on the business license tax for those businesses within the BID boundary. The City collects the BID revenue from businesses within the BID boundary and distributes funding to each of the two BID organizations, in accordance with approved operating agreements. The organizations submit invoices and receipts for reimbursement to the City on a rolling basis. DTI and SABC each receive approximately $100,000 per calendar year from the additional business levy assessment. PERFORMANCE METRICS REAL ESTATE INDICATORS Vacancy Rate (Retail and Office) The downtown vacancy rate for retail and office space is 6.9%. This represents a decrease from a peak vacancy rate of 11.8% in February 2013. Mic aucy Rate 12% 11% 10% % 8% 7% 6% 5%1 2012 2013 2014 2015 2016 Source: Costar 2616 Building Permits Issued (and project valuation) A total of 42 building permits were issued for downtown from July 1, 2015 to June 30, 2016. The total valuation of this permitted work was $4,985,540. In the previous twelve-month period, 89 building permits were issued. The total valuation of this permitted work was $789,052. BUSINESS INDICATORS Total Business Licenses According to business license data, there are a total of 720 active businesses in downtown as of November 2016. This is compared to a total of 702 active businesses in downtown in December 2015. This represents an increase of 2.5% over the last year. Sales Taxes Local sales taxes generated by downtown businesses increased 51 % from 2010 to 2015. Complete data is not yet available for 2016. BID PROGRAMS Marketing Y DTSA Newsletter reaches 1,850 readers each week (16% increase in 2016) 19E-4 2015 2014 2013 2012 2011 2010 Sales tax revenues (USD) 1,147,965 1,024,437 1,002,562 999,515 861,045 761,864 % Increase from previous year 12% 2% 0% 16% 13% n/a % Increase since 2010 51% 34% 32% 31% 13% n/a BID PROGRAMS Marketing Y DTSA Newsletter reaches 1,850 readers each week (16% increase in 2016) 19E-4 • DTI website averages 5,000 visitors per month (5% increase in 2016) • SABC website averages 1,650 visitors per month (website launched in March 2016) • Shop Small Santa Ana Campaign included special deals from 50+ local businesses (New program in 2016) • SABC distributed 7,500 printed flyers per month in 2016, advertising downtown businesses, Sidewalk Sales, DTSA Farmers Market, Sunday Matinees, and Art Walk Social Media • DTI Facebook page: 27,995 likes; SABC Facebook page: 1,790 likes o City of Santa Ana: 6,553 likes; SAUSD: 4,725 likes • DTI Instagram account: 16,500+ followers; 8,000+ posts promoting local businesses • SABC "Flash Mob" Campaign videos generated 38,000+ views (New program in 2016) Special Events • BID -Sponsored events attracted more than 70,000 visitors to downtown in 2016 o First Saturday Art Walk o Santa Ana Media Summit (New event in 2016) o Savor Santa Ana o Santa Ana Street Breakfast (New event in 2016) o SAUSD School of Choice Fair o Arts Roundtables (New event in 2016) Weekly Entertainment • SABC's Sunday Matinees at the Frida Cinema attracts an average of 35 visitors to downtown each weekend (New program in 2016) • SABC sponsored 300+ hours of live musical entertainment in 2016 • SABC sponsored 500+ hours of clown entertainment (balloon figures and face painting) in 2016 • SABC generated $251,563.00 in in-kind donations in 2016, according to the BID organization's own calculations 19E-5 19E-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: COMPREHENSIVE ANNUAL FINANCIAL REPORT FOR THE FISCAL YEAR -ENDED JUNE 30, 2016 (STRATEGIC PLAN NO. 4, 1) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the following audited and separately issued reports for Fiscal Year Ended June 30, 2016: 1. Comprehensive Annual Financial Report 2. Air Quality Management District (AQMD) 3. Appropriations Limit (GANN Limit) 4. Compliance with the Statement of Investment Policy DISCUSSION The Finance and Management Services Agency - Accounting Division (Accounting Division) is the lead on various audit and separately issued reports compiled and prepared by the City's Independent Auditor, White Nelson Diehl Evans LLP (WNDE). Outlined below is a list of the reports and related status. AUDITED REPORTS: Comprehensive Annual Financial Report (Exhibit 1) The Comprehensive Annual Financial Report (CAFR), prepared by the Accounting Division reports audited financial information on all City funds for the Fiscal Year ended June 30, 2016. The CAFR is prepared in accordance with the Generally Accepted Accounting Principles along with the reporting requirements set forth by the Governmental Accounting Standards Board. The CAFR was audited by the City's independent public accounting firm, WNDE, in accordance with Government Auditing Standards (GAS). WNDE was awarded a contract by the City Council on May 3, 2016 after successful completion of the City's Request for Proposal (RFP) process. 19F-1 Comprehensive Annual Financial Report for the Fiscal Year -Ending June 30, 2016 December 20, 2016 Page 2 • Accounting Division is pleased to report that that the City received an unmodified opinion; commonly known as a clean opinion, which is considered the most favorable conclusion for the Audit. The unmodified opinion indicates that the City's financial statements present fairly, in all material respects, the financial position of the City, changes in financial position, and cash flows for the fiscal year ended June 30, 2016. Audit of the City's Air Quality Management District (AQMD) financial statements (Exhibit 2) Under Assembly Bill 2766 Chapter 1705 (California Health and Safety Code (CHSC) Sections 44220 through 442471, cities and counties receiving the AB 2766 funds are required to separately account for the revenue and to expend the revenue for air pollution reduction measures. The AQMD audit report reflects the City's compliance to such measures. • Accounting Division is pleased to report that the City received an unmodified opinion on the AQMD audit report and no compliance findings were noted. SEPARATELY ISSUED REPORTS: In addition to the CAM and the AQMD reports, WNDE performed the following Agreed Upon Procedures (AUP) examinations: Appropriations Limit calculations, also known as GANN Limit (Exhibit 3) The GANN limit established the appropriations limit on expenditures for publicly funded programs in accordance with Section 1 of Article XIII of the California Constitution. Accounting Division is pleased to report that no findings were noted as a result of this AUP review. City's compliance with the Statement of Investment Policy (Exhibit 4) The report on the City's Investment Policy is elected to be performed by the City to ensure compliance. Accounting Division is pleased to report that no findings were noted as a result of this AUP review. The CAM is posted and available on the City's website. In addition, FMSA will submit the report to the Government Finance Officers Association's Certificates of Achievement for Excellence in Financial Reporting Program. This award is the highest form of recognition in governmental accounting and financial reporting. The City has received this prestigious award for thirty eight consecutive years. 19F-2 Comprehensive Annual Financial Report for the Fiscal Year -Ending June 30, 2016 December 20, 2016 Page 3 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). FISCAL IMPACT There is no fiscal impact associated with this action. �ARzmltwru .� Francisco Gutierrez Executive Director Finance and Management Services Agency EXHIBITS: 1. Comprehensive Annual Financial Report (CAFR) 2. Air Quality Management District (AQMD) Report 3. GANN Limit Agreed -Upon Procedures Report 4. Investment Policy Agreed -Upon Procedures Report 19F-3 19F-4 Exhibit 1 The Comprehensive Annual Financial Report for the Fiscal Year - Ended June 30, 2016 can be found on the City's internet at: http://www.ci,santa-ana.ca.us/finance/cafr/documents/2016 cafr.pdf. 19F-5 19F-6 EXHIBIT 2 CITY OF SANTA ANA, CALIFORNIA AIR QUALITY IMPROVEMENT SPECIAL REVENUE FUND FINANCIAL STATEMENTS WITH REPORT ON AUDIT BYINDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS FOR THE YEAR ENDED JUNE 30, 2016 19F-7 CITY OF SANTA ANA, CALIFORNIA AIR QUALITY IMPROVEMENT SPECIAL REVENUE FUND TABLE OF CONTENTS For the year ended June 30, 2016 Independent Auditors' Report Page Number Financial Statements: Balance Sheet 4 Statement of Revenues, Expenditures and Changes in Fund Balance Notes to Financial Statements 6 Required Supplementary Information: 10 Statement of Revenues, Expenditures and Changes in Fund Balance - Budget and Actual 11 Independent Auditors' Report on Internal Control over Financial Reporting and on Compliance and Other Matters Based on an Audit of Financial Statements Performed in Accordance with Government Auditing Standards 12 19F-8 INDEPENDENT AUDITORS' REPORT The Honorable Mayor and Members of the City Council of the City of Santa Ana Santa Ana, California Report on the Financial Statements We have audited the accompanying financial statements of the Air Quality Improvement Special Revenue Fund (AQMD) of the City of Santa Ana, California (the City), as of and for the year ended June 30, 2016, and the related notes to the financial statements, as listed in the table of contents. Management's Responsibility for the Financial Statements Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error. Auditors' Responsibility Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States. Those standards require that we plan and perforin the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement. An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditors' judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditors consider internal control relevant to the City's preparation and fair presentation of the AQMD's financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the City's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion. -1- 2875 Michelle Drive, Suite 300, Iivine, CA 92606 • Tel: 714.978.1300 • Fax: '714.978.7893 Offices loeaied in 1sp-'Evn Diego Counties Opinion In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of the Air Quality Improvement Special Revenue Fund of the City of Santa Ana, California as of June 30, 2016, and the changes in financial position thereof for the year then ended in accordance with accounting principles generally accepted in the United States of America. Emphasis of Matter As discussed in Note 1, the financial statements present only the Air Quality Improvement Special Revenue Fund and do not purport to, and do not present fairly the financial position of the City of Santa Ana, California, as of June 30, 2016, and the changes in its financial position for the year then ended in accordance with accounting principles generally accepted in the United States of America. Our opinion is not modified with respect to this matter. Other Matters Required Supplementary Information Accounting principles generally accepted in the United States of America require that the Statement of Revenues, Expenditures and Changes in Fund Balance - Budget and Actual, identified as Required Supplementary Information (RSI) in the accompanying table of contents, be presented to supplement the basic financial statements. Such information, although not a part of the basic financial statements, is required by the Governmental Accounting Standards Board, who considers it to be an essential part of financial reporting for placing the basic financial statements in an appropriate operational, economic or historical context. We have applied certain limited procedures to the RSI in accordance with auditing standards generally accepted in the United States of America, which consisted of inquiries of management about the methods of preparing the information and comparing the information for consistency with management's responses to our inquiries, the basic financial statements, and other knowledge we obtained during the audit of the basic financial statements. We do not express an opinion or provide any assurance on the RSI because the limited procedures do not provide us with sufficient evidence to express an opinion or provide any assurance. Management has not presented the management's discussion and analysis that accounting principles generally accepted in the United States of America require to be presented to supplement the basic financial statements. Such missing information, although not a part of the basic financial statements, is required by the Governmental Accounting Standards Board, who considers it to be an essential part of financial reporting for placing the basic financial statements in an appropriate operational, economic, or historical context. Our opinion on the AQMD's basic financial statements is not affected by this missing information. -2- 19F-10 Other Reporting Required by Government Auditing Standards In accordance with Government Auditing Standards, we have also issued our report dated December 7, 2016, on our consideration of the internal control over the AQMD's financial reporting and on our tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements and other matters. The purpose of that report is to describe the scope of our testing of internal control over financial reporting and compliance and the results of that testing, and not to provide an opinion on internal control over financial reporting or on compliance. That report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the internal control over the AQMD's financial reporting and compliance. Irvine, California December 7, 2016 i -3- 19F-11 CITY OF SANTA ANA, CALIFORNIA AIR QUALITY IMPROVEMENT FUND BALANCESHEET June 30, 2016 ASSETS: Cash and investments Interest receivable TOTAL ASSETS LIABILITIES AND FUND BALANCE: LIABILITIES: Accounts payable FUND BALANCE: Restricted for air quality improvement TOTAL LIABILITIES AND FUND BALANCE See accompanying notes to financial statements. -4- 19F-12 $ 626,341 768 $ 627,109 $ 9,599 617,510 $ 627,109 CITY OF SANTA ANA, CALIFORNIA AIR QUALITY IMPROVEMENT FUND STATEMENT OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE For the year ended June 30, 2016 REVENUES: Motor vehicle fees Investment income Miscellaneous TOTAL REVENUES EXPENDITURES: Direct program Administrative TOTAL EXPENDITURES DEFICIENCY OF REVENUES UNDER EXPENDITURES FUND BALANCE, BEGINNING OF YEAR FUND BALANCE, END OF YEAR See accompanying notes to financial statements. -5- 19F-13 $ 310,454 7,065 3,025 320,544 388,757 9,156 397,913 (77,369) 694,879 $ 617,510 CITY OF SANTA ANA, CALIFORNIA AIR QUALITY IMPROVEMENT SPECIAL REVENUE FUND NOTES TO FINANCIAL STATEMENTS June 30, 2016 1. GENERAL: The financial statements are intended to reflect the financial position and changes in the financial position attributable to the Air Quality Improvement Special Revenue Fund (AQMD) of the City of Santa Ana, California (the City). These financial statements are exclusively for AQMD and do not purport to, and do not present fairly the financial position and changes in the financial position for the City. The South Coast Air Quality Management District (SCAQMD) is authorized under Assembly Bill 2766 (AB 2766) Chapter 1705 [California Health and Safety Code (CHSC) Sections 44220 through 44247] to impose a motor vehicle registration fee to be used by the SCAQMD and local governments specifically for programs to reduce air pollution from mobile sources and related planning, monitoring, enforcement, and technical studies necessary for the implementation of the California Clean Air Act of 1988. The California Department of Motor Vehicles collects the vehicle registration fee and subvenes it to SCAQMD. Upon receipt, the vehicle registration fee is split into segments with 40% of the revenue place in a special revenue fund designated as the Air Quality Improvement Trust Fund for quarterly distribution to local governments. CHSC Section 44243 requires cities and counties receiving the AB 2766 funds to separately account for the revenues and to expend the revenues for air pollution reduction measures pursuant to the California Clean Air Act of 1988 or the SCAQMD's Air Quality Management Plan pursuant to Article 5 of Chapter 5.5 of Part 3 of the CHSC. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: A. Fund Accounting: The financial activity of the City is accounted for on the basis of funds, each of which is considered a separate accounting entity with a self -balancing set of accounts. Monies under AB 2766 are accounted for in the Air Quality Improvement Special Revenue Fund, which is a special revenue fund. B. Measurement Focus and Basis of Accounting: The accounting and financial reporting treatment is determined by the applicable measurement focus and basis of accounting. Measurement focus indicates the type of resources being measured such as current financial resources or economic resources. The basis of accounting indicates the timing of transactions or events for recognition in the financial statements. WE 19F-14 CITY OF SANTA ANA, CALIFORNIA AIR QUALITY IMPROVEMENT SPECIAL REVENUE FUND NOTES TO FINANCIAL STATEMENTS (CONTINUED) June 30, 2016 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED): B. Measurement Focus and Basis of Accounting (Continued): AQMD's financial statements are reported using the current financial resources measurement focus and the modified accrual basis of accounting. Revenues are recognized as soon as they are both measurable and available. Revenues are considered to be available when they are collectible within the current period or soon enough thereafter to pay liabilities of the current period. For this purpose, the government considers revenues to be available if they are collected within 60 days of the end of the current fiscal period. Expenditures generally are recorded when a liability is incurred, as under accrual accounting. C. Budgetary Accounting: The City's fiscal year begins on July 1 of each year and ends June 30 the following year. On or before the fifteenth of June of each year, the City Manager recommends and submits to the City Council a proposed budget for the next ensuing fiscal year based on a detailed financial plan prepared by the heads of the various offices, agencies and departments of the City and its component units. Upon receipt of the proposed budget, the Council holds a public hearing wherein the public is given an opportunity to be heard, after which the Council may make any revisions deemed advisable. After the conclusion of the public hearing, the Council may make modifications with the affirmative vote of at least a majority of its members. On or before the thirty-first day of July, the City Council adopts the budget as amended by the affirmative vote of at least a majority of its members. Upon final adoption, the budget is in effect for the ensuing fiscal year and becomes the authority for the various offices, agencies, and departments to expend subject to controls established by the City Charter. At any meeting after the adoption of the budget, the City Council may amend or supplement the budget by affirmative vote of at least two-thirds of the members so as to authorize the transfer of unused balances appropriated for one purpose to another purpose, or to appropriate available revenue not included in the budget. Where appropriations are made to offices, departments, or agencies for more than one activity or program, "appropriations" are considered in the aggregate with respect to total expenditures authorized for that office, department or agency within each fund, limited to purposes for which the revenues of such funds are to be spent. The City Manager is authorized to make revisions among the items included in such appropriations if, in his opinion, such revisions are necessary and proper. Budgetary control exists at the department level. Council action is necessary for transfers between departments/agencies or transfers between funds. During the fiscal year, all budget and supplemental amendments were necessary and made in a legally permissible manner. -7- 19F-15 CITY OF SANTA ANA, CALIFORNIA AIR QUALITY IMPROVEMENT SPECIAL REVENUE FUND NOTES TO FINANCIAL STATEMENTS (CONTINUED) June 30, 2016 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED): C. Budgetary Accounting (Continued): The City legally adopts annual budgets for the Special Revenue Funds including the Air Quality Improvement Special Revenue Fund. The budgetary control for the Special Revenue Funds is under the department in charge. The Air Quality Improvement Special Revenue Fiord is managed by the Finance and Management Services Agency. Monthly budgetary reports are prepared to effect control through fiscal management. The City Council approved supplemental appropriations during the year, but they were not considered material. Budgets are prepared on a modified accrual basis. Encumbrances (e.g. purchase orders, contracts) outstanding at year-end are reported as restrictions of fund balances since they do not constitute expenditures or liabilities. All other annual appropriations lapse at fiscal year-end to the extent that they have not been expended or lawfully encumbered. During the fiscal year, the total Fund's expenditures were within the legal prescribed limits as approved by the City Council. D. Fund Balance: AQMD's fund balance is reported based on the extent to which the City is bound to observe constraints on the use of the AQMD's resources. AQMD's fund balance is classified under restricted, which include amounts which are constrained for specific purposes that are 1) externally imposed by creditors, grantors, contributors, or laws or regulations of other governments or 2) imposed by law through enabling legislation. AQMD's fund balance is restricted for programs initiated for the purpose of implementing the California Clean Air Act. Information regarding the fund balance reporting policy adopted by the City is described in Note 1 to the City of Santa Ana's Comprehensive Annual Financial Report. E. Estimates: The preparation of financial statements in accordance with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that effect certain reported amounts and disclosures. Accordingly, actual results could differ from those estimates. -8- 19F-16 CITY OF SANTA ANA, CALIFORNIA AIR QUALITY IMPROVEMENT SPECIAL REVENUE FUND NOTES TO FINANCIAL STATEMENTS (CONTINUED) June 30, 2016 3. CASH AND INVESTMENTS: AQMD's cash and investments balances are pooled with various other City funds for deposit and investment purposes. Each fund's share of the pooled cash account is separately accounted for, and investment income is apportioned to the participating funds based on the relationship of their average daily balances to the total of the pooled cash and investments. Information regarding the credit risk and authorized types of deposits and investments in the City's pooled cash and investments is included in the City's Comprehensive Annual Financial Report. This report can be obtained from the City of Santa Ana. 4. AB 2766 BIENNIAL AUDIT AND QUESTIONED COSTS: Health and Safety Code Section 44244.1 stipulate that each recipient of AB 2766 funds be subject to an audit at least once every two years by an independent auditor selected by the SCAQMD. The most recent AB 2766 audit resulted in no questioned costs. 5. SUBSEQUENT EVENTS: The City has evaluated events subsequent to June 30, 2016 to assess the need for potential recognition or disclosure in the financial statements. Such events were evaluated through December 7, 2016, the date the financial statements were available to be issued. Based upon this evaluation, it was determined that no subsequent events occurred that require recognition or additional disclosure in the notes to financial statements. -9- 19F-17 REQUIRED SUPPLEMENTARY INFORMATION -10- 19F-18 CITY OF SANTA ANA, CALIFORNIA AIR QUALITY IMPROVEMENT FUND STATEMENT OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE - BUDGET AND ACTUAL For the year ended June 30, 2016 REVENUES: Motor vehicle fees Investment income Miscellaneous TOTAL REVENUES EXPENDITURES: Direct program Administrative TOTAL EXPENDITURES DEFICIENCY OF REVENUES UNDER EXPENDITURES FUND BALANCE, BEGINNING OF YEAR FUND BALANCE, END OF YEAR Variance with Final Budget Budgeted Amounts Positive Original Final Actual (Negative) $ 414,000 $ 414,000 $ 310,454 $ (103,546) 300 300 7,065 6,765 1,850 1,850 3,025 1,175 416,150 416,150 320,544 (95,606) 995,245 1,131,193 388,757 742,436 20,905 20,905 9,156 11,749 1,016,150 1,152,098 397,913 754,185 (600,000) (735,948) (77,369) 658,579 694,879 694,879 694,879 $ 94,879 $ (41,069) $ 617,510 $ 658,579 See accompanying notes to financial statements. -11- 19F-19 INDEPENDENT AUDITORS' REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING AND ON COMPLIANCE AND OTHER MATTERS BASED ON AN AUDIT OF FINANCIAL STATEMENTS PERFORMED IN ACCORDANCE WITH GOVERNMENT AUDITING STANDARDS The Honorable Mayor and Members of the City Council of the City of Santa Ana Santa Ana, California We have audited, in accordance with the auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States, the financial statements of the Air Quality Improvement Fund (AQMD) of the City of Santa Ana, California (the City), as of and for the year ended June 30, 2016, and the related notes to financial statements, which collectively comprise the AQMD's basic financial statements, and have issued our report thereon dated December 7, 2016. Internal Control over Financial Reporting In planning and performing our audit, we considered the City of Santa Ana, California's internal control over AQMD financial reporting (AQMD's internal control) to determine the audit procedures that are appropriate in the circumstances for the purpose of expressing our opinion on the AQMD's financial statements, but not for the purpose of expressing an opinion on the effectiveness of the AQMD's internal control. Accordingly, we do not express an opinion on the effectiveness of the AQMD's internal control. A deficiency in internal control exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, misstatements on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control, such that there is a reasonable possibility that a material misstatement of the AQMD's financial statements will not be prevented, or detected and corrected on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance. Our consideration of internal control was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control that might be material weaknesses or, significant deficiencies. Given these limitations, during our audit we did not identify any deficiencies in internal control that we consider to be material weaknesses. However, material weaknesses may exist that have not been identified. -12- 2875 Michelle Drive, Suite 300, Irvine, CA 92606 • Tel: 714.978.1300 • Fax: 714.978.7893 Of locatod1Qe�tgi%lYsa Diego Con e Compliance and Other Matters As part of obtaining reasonable assurance about whether the Air Quality Improvement Special Revenue Fund of the City of Santa Ana, California's financial statements are free from material misstatement, we performed tests of its compliance with applicable provisions of Assembly Bill 2766 (AB2766), Chapter 1705 (Health and Safety Code Sections 44220 through 44247), and certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on the determination of the AQMD's financial statement amounts. However, providing an opinion on compliance with those provisions was not an objective of our audit and, accordingly, we do not express such an opinion. The results of our tests disclosed no instances of noncompliance or other matters that are required to be reported under Government Auditing Standards. Purpose of this Report The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the AQMD's internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the AQMD's internal control and compliance. Accordingly, this communication is not suitable for any other purpose. Irvine, California December 7, 2016 -13- 19F-21 EXHIBIT 3 CITY OF SANTA ANA, CALIFORNIA APPROPRIATIONS LIMIT WORKSHEET NO. 6 WITH INDEPENDENT ACCOUNTANTS' REPORT ON AGREED-UPON PROCEDURES APPLIED TO APPROPRIATIONS LIMIT WORKSHEET FOR THE YEAR ENDED JUNE 30, 2016 19F-22 INDEPENDENT ACCOUNTANTS' REPORT ON AGREED-UPON PROCEDURES APPLIED TO APPROPRIATIONS LIMIT WORKSHEET To the Honorable Mayor and Members of the City Council of the City of Santa Ana Santa Ana, California We have performed the procedures enumerated below to the accompanying Appropriations Limit Worksheet No. 6 of the City of Santa Ana, California for the year ended June 30, 2016. These procedures, which were agreed to by the City of Santa Ana, California and the League of California Cities (as presented in the League publication entitled "Article XIII -B Appropriations Limit Uniform Guidelines") were performed solely to assist the City of Santa Ana, California in meeting the requirements of Section 1.5 of Article XIIIB of the California Constitution. The City of Santa Ana's management is responsible for the Appropriations Limit Worksheet No. 6. This agreed-upon procedures engagement was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants. The sufficiency of the procedures is solely the responsibility of those parties specified in this report. Consequently, we make no representation regarding the sufficiency of the procedures described below either for the purpose for which this report has been requested or for any other purpose. The procedures performed and our findings were as follows: We obtained the completed Worksheet No. 6 for the year ended June 30, 2016, and compared the limit and annual adjustment factors included in that worksheet to the limit and annual adjustment factors that were adopted by resolution of the City Council. We also compared the population and inflation options included in the aforementioned worksheet to those that were selected by a recorded vote of the City Council. No exceptions were noted as a result of our performing this procedure. 2. For the accompanying Appropriations Limit Worksheet No. 6, we added last year's limit to the total adjustments, and compared the resulting amount to this year's limit. We also recalculated the adjustment factor and the adjustment for inflation and population, and compared the results to the amounts on Worksheet No. 6. No exceptions were noted as a result of our performing this procedure. -1- 2875 Michelle Drive, Suite 300, Irvine, CA 92606 • Tel: 714.978.1300 - Fax: 714.978.7893 Offlces loca&ed 1(9F g23a Diego Counties 3. We compared the prior year appropriations limit presented in the accompanying Appropriations Limit Worksheet No. 6 to the prior year appropriations limit adopted by the City Council for the prior year. No exceptions were noted as a result of our performing this procedure. We were not engaged to, and did not, perform an audit, the objective of which would be the expression of an opinion on the accompanying Appropriations Limit Worksheet No. 6. Accordingly, we do not express such an opinion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you. No procedures have been performed with respect to the determination of the appropriation limit for the base year, as defined by the League publication entitled "Article XIII -13 Appropriations Limit Uniform Guidelines". TI -ds report is intended solely for the information and use of the City Council and management of the City of Santa Ana, California and is not intended to be, and should not be, used by anyone other than these specified parties. /� AU& � LL% Irvine, California December 7, 2016 -2- 19F-24 CITY OF SANTA ANA APPROPRIATIONS LIMIT WORKSHEET NO. 6 For the year ended June 30, 2016 Appropriations limit for fiscal year ended June 30, 2015 (see Note 2) Adjustment factors for the fiscal year ended June 30, 2016 (see Note 2): Inflation Population Factor Factor (Note 3) (Note 4) 1.0382 1.0108 Adjustment for inflation and population Other adjustments (Note 5) Total adjustments Appropriations limit for fiscal year ended June 30, 2016 Combined Factor 1.0494 See accompanying notes to Appropriations Limit Worksheet No. 6. -3- 19F-25 $ 893,083,329 x 0.0494 44,119,452 44,119,452 $ 937.202.781 CITY OF SANTA ANA NOTES TO APPROPRIATIONS LIMIT WORKSHEETNO. 6 For the year ended June 30, 2016 1. PURPOSE OF LIMITED PROCEDURES REVIEW: Under Article X11I13 of the California Constitution (the Gann Spending Limitation Initiative), California governmental agencies are restricted as to the amount of annual appropriations from proceeds of taxes. Effective for years beginning on or after July 1, 1990, under Section 1.5 of Article XIIIB, the annual calculation of the appropriations limit is subject to a limited procedures review in connection with the annual audit. 2. METHOD OF CALCULATION: Under Section 10.5 of Article XIIIB, for fiscal years beginning on or after July 1, 1990, the appropriations limit is required to be calculated based on the limit for the fiscal year 1986-87, adjusted for the inflation and population factors discussed at Notes 3 and 4 below. 3. INFLATION FACTORS: A California governmental agency may adjust its appropriations limit by either the annual percentage change in the 4th quarter per capita personal income (which percentages are supplied by the State Department of Finance), or the percentage change in the local assessment roll from the preceding year due to the change of local nonresidential construction. The factor adopted by the City of Santa Ana, California (the City) for fiscal year 2015-2016 represents the annual percentage change in the 4th quarter for per capita personal income. 4. POPULATION FACTORS: A California governmental agency may adjust its appropriations limit by either the annual percentage change of the jurisdiction's own population, or the annual percentage change in population in the County where the jurisdiction is located. The factor adopted by the City for fiscal year 2015-2016 represents the annual percentage change in population in the County in which the City is located. 5. OTHER ADJUSTMENTS: A California government agency may be required to adjust its appropriations limit when certain events occur, such as the transfer of responsibility for municipal services to, or from, another government agency or private entity. The City had no such adjustments for the year ended June 30, 2016. -4- 19F-26 INDEPENDENT ACCOUNTANTS' REPORT ON APPLYING AGREED-UPON PROCEDURES EXHIBIT 4 To the Honorable City Council of the City of Santa Ana Santa Ana, California We have performed the procedures enumerated below, which were agreed to by the City of Santa Ana, California (the City), solely to assist the City in determining whether the City's investment activities are in compliance with the City's Statement of Investment Policy (the Policy) and the California Government Code, §53600, et al. (the Code) for the quarter ended June 30, 2016. The City's management is responsible for the compliance with the Policy and the Code and for selecting the criteria and determining that such criteria are appropriate for your purposes. This agreed-upon procedures engagement was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants. The sufficiency of these procedures is solely the responsibility of the City's management. Consequently, we make no representation regarding the sufficiency of the procedures described below either for the purpose for which this report has been requested or for any other purpose. Our procedures and findings were as follows 1. We obtained a copy of the City's Quarterly Investment Report for the quarter -ended June 2016 and compared the investments listed in the report to the types of investments authorized by the Policy for fiscal year 2015/2016. Finding: No exceptions were noted as a result of our performing this procedure. 2. We compared the investments listed on the City's Quarterly Investment Report for the quarter -ended June 2016 to the type of investments authorized by the Code. Finding: No exceptions were noted as a result of our performing this procedure. 3. We ensured that the maturities of investments listed in the City's Quarterly Investment Report for the quarter -ended June 2016 were in compliance with the Policy. Finding: No exceptions were noted as a result of our performing this procedure. -1- 2875 Michelle Drive, Suite 300, Irvine, CA 92606 -Tel: 714.978.1300 • Fax: 714.978.7893 Offices located i"IF ii,271' Diego Counties 4. We reviewed the City's Quarterly Investment Report for the quarter -ended June 2016 to ascertain it contained the information/data required by Government Code Section 53646 and met the timing requirements of Government Code Section 53646, as follows: a. Included the type of investment, issuer, date of maturity, par and dollar amount invested on all securities, investments and monies held by the City. b. Included those funds under management of contracted parties (fiscal agents, trustees, etc.). c. Included market value (and source) as of the date of the report for all securities held by the City or under management of any outside party that was not also a local agency or the State of California Local Agency Investment Fund. d. Stated compliance of the portfolio to the Policy of the City. e. Included a statement addressing the ability of the City to meet the pool's expenditure requirements for the next six months. Finding: No exceptions were noted as a result of our performing this procedure. We compared the investments listed in the City's Quarterly Investment Report for the quarter -ended June 2016 to the prohibited investments listed in the Code. Finding: No exceptions were noted as a result of our performing this procedure. 6. We reviewed the City's Quarterly Investment Report submission evidence documentation for the quarter -ended June 2016 and ascertained whether a quarterly basis report was submitted within 30 days following the end of the quarter. Finding: No exceptions were noted as a result of our performing this procedure. We were not engaged to, and did not, conduct an audit, the objective of which would be the expression of an opinion on the compliance with the Policy. Accordingly, we do not express such an opinion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you. This report is intended solely for the information and use of the City Council and management of the City, and is not intended to be, and should not be, used by anyone other than those specified parties. l 7 % Irvine, California December 7, 2016 Aue_" ad"o) Lc,-' -2- 19F-28 CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: APPROPRIATION ADJUSTMENT AND AGREEMENT WITH GREATER SANTA ANA VITALITY FOUNDATION -SANTA ANA CHAMBER FOR ECONOMIC DEVELOPMENT SERVICES {STRATEGIC PLAN NO. 3, 1C & 1E} CITY MANAGER09 RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Authorize the City Manager and Clerk of the Council to execute an agreement with the Greater Santa Ana Vitality Foundation, a non-profit arm of the Santa Ana Chamber of Commerce, subject to non -substantive changes approved by the City Manager and City Attorney, for economic development services, for a one-year period ending on December 20, 2017, in the amount not to exceed $500,000. 2. Approve an appropriation adjustment recognizing $500,000 in revenue fees account (no. 01102002-51601) and appropriate the funds to the Economic Development Contract Services expenditure account (no. 01118810-62300) for the agreement with Greater Santa Ana Vitality Foundation. DISCUSSION The recommended item noted above was brought forth to the City Council for considederation and approval during the fiscal year 2016-17 budget process. The recommended action requests for reallocation of funds (held in a Trust account) for appropriation and expenditure in the program noted above. The At the September 20 City Council meeting, staff presented several options for the disbursement of one million dollars in City funds for economic development activities. These funds were designated to encourage local private and public partnerships, increase vibrant economic development activities, leverage limited city resources, and focus on short-term economic stabilization and long-term economic stability. City Council provided direction to allocate $500,000 to the Santa Ana Chamber of Commerce Economic Development Council (EDC). The mission of the Santa Ana Chamber Economic Development Council is to bring together active stakeholders in the city who all desire the same collective outcome: a vibrant, sustainable and attractive business climate that allows for both revenue and tax growth, but also paves the 20A-1 Agreement with Greater Santa Ana Vitality Foundation for Economic Development December 20, 2016 Page 2 way for the growth of social capital. Their goals include: 1) enhancing economic development and growing the local economy; 2) projecting a positive community image through ongoing multi- media efforts and 3) linking local schools with the business community in order to help produce a trained workforce to bridge the existing skills gap. A current roster of the Chamber EDC is attached (Exhibit 2). The Chamber EDC is proposing to develop a comprehensive tourism/marketing campaign focused on citywide promotion, public relations, outreach, and retention. A brief description of the focus areas of the Chamber's proposal is as follows: PROMOTION A year-round program that will actively promote the city as the best location for businesses through a multi -media campaign including websites, online banner ads, collateral materials such as rack brochures, membership in key regional trade associations, and publication of a quarterly newsletter. PUBLIC RELATIONS A year-round publicity campaign that will develop opportunities to show the city in a positive light through feature stories in prominent local publications online as well as in the O.C. Register, L.A. Times, and Orange County Business Journal, and in broadcast and cable television and radio station newscasts. OUTREACH The annual GROW Economic Development Conference has tripled in the number of attendees over the last three years. Over 360 developers, investors, brokers, and businesses attended this past October's Conference. Additional outreach efforts will include a program to attract new tenants for Santa Ana commercial real estate space - compiling current market information and partnering with key brokers to develop and share leads on prospective tenants that match up with space opportunities, hosting events that draw an audience of real estate decision makers, and participation in regional trade shows. RETENTION The City and the Chamber of Commerce are entering their third year of a program in which teams of City staffers and business leaders pair up monthly to visit and survey local businesses in order to compile a valuable business database. Over 300 local businesses have been visited since the inception of the program. The City has received valuable feedback on the issues that are important to businesses operating in Santa Ana both large and small. A more detailed scope of work of the proposal is included in the Agreement. The Chamber of Commerce will administer the funds through their non-profit arm, the Santa Ana Vitality Foundation. The Foundation's specific purpose is to enhance economic development and community image and grow the local economy. 20A-2 Agreement with Greater Santa Ana Vitality Foundation for Economic Development December 20, 2016 Page 3 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objective #1, (Implement a comprehensive Economic Development strategy to ensure that Santa Ana is a City with a vibrant business climate that is accessible, user-friendly and welcoming to all residents and visitors), Strategy C (Promote and market Santa Ana specific strengths in the regional economy) and Strategy E (Partner with local Chambers of Commerce, citywide business associations and the community to develop a new branding and marketing strategy for the City). FISCAL IMPACT Approval of the appropriation adjustment will reallocate funds in the amount of $500,000 in revenue account (no. 01102002-51601) and increase the Economic Development Contract Services expenditure accounts as follows: Account Projected Expenditure in Amount 01118810-62300 FY 2016-17 $300,000 01118810-62300 FY 2017-18 $200,000 Total $500,000 Robert C. Corte Deputy City Manager- City an ger"City Manager's Office APPROVED AS TO FUNDS AND ACCOUNT: Frerncisck Gutierrez Do Executive Director Finance and Management Services Agency Exhibits: 1. Agreement 2. Roster of Chamber EDC members 20A-3 20A-4 CONSULTANT AGREEMENT THIS AGREEMENT is made and entered into this _ day of , 201_ by and between the Greater Santa Ana Vitality Foundation, a non-profit arm of the Santa Ana Chamber of Commerce (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 Economic Development and Tourism Campaign Development Services. 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: SCOPE OF SERVICES Consultant shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed five -hundred thousand dollars ($500,000.00) during the term of this Agreement. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above for a one-year period ending on , 201_, unless terminated earlier in accordance with Section 15 below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, 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 Clty. 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 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. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 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. 20A-6 (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. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 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. 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. 2UA'% M CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by 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: Executive Director— CDA City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, Callfornia 92702 Fax 714- 647-6549 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 MA -8 To Consultant: 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 are not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 20A-9 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. 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. % MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 20A-10 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: City By: . -a Ryan O.I Assistant 7Tifi0 * •:;J"-;• MW ROBERT C. CORTEZ Deputy City Manager CITY OF SANTA ANA DAVID CAVAZOS City Manager CONSULTANT (NAME) (Title) Tax ID# 204-11 EXHIBIT A SCOPE OF SERVICES 204-12 The goal of the campaign is to increase development and tourism to the city of Santa Ana by developing a comprehensive marketing strategy that will build brand awareness and revenue. } Objectives: • Develop a comprehensive website that provides information on city events, entertainment, dining, shopping, sightseeing, hotels and more, • Launch and continue a PR plan that will give the city of Santa Ana increased exposure highlighting the assets that are unique to the city. • Utilize social media to increase brand awareness and build engaging relationships with our target audience. Products and Services: • Website o The website will be designed to showcase the major business and attractions that we will leverage and advertise to drive additional traffic and sales to the city (DTSA restaurants and nightlife, Bowers, MainPlace Mall, Discovery Cube, SA Zoo etc, o We will create a one-stop shop of everything to see and do in the city. • Public Relations o Create a comprehensive public relations outreach to all residents in OC, and to increase awareness with developers, investors and tourists to Southern California. o An ongoing PR effort will highlight all the reasons to live, work, play and invest in Santa Ana. • Social Marketing o Utilize integrated social marketing plan to create ongoing relationships with our target audiences. o Social marketing allows us to engage with our target audience by delivering relevant content about what is happening in Santa Ana, news, etc. Chamber Outreach Programs • Grow Conference o Continue to expand the influence of the Grow Conference program. o Increase attendees, presentation, sponsors and networking by increasing marketing outreach. o Create outbound e -newsletter to communicate the latest ED wins and opportunities with attendee email list throughout the year. • Taste of Santa Ana o Santa Ana is a culinary destination with some of the best restaurants in Orange County. Our campaign will be showcasing articles and publications that listed our restaurants in their "best of categories. o All PR and social marketing efforts will drive even more attendance in year two, • Business Expo o This annual event showcases 50-70 companies here in Santa Ana from all types of business. o It attracts people to come and meet with these various businesses and learn about their services and/or products. o This networking program creates a stronger sense of community. • Retention Program o The retention program works with businesses throughout the city to help them sustain growth and thrive in Santa Ana. o We gather Information through the use of a survey instrument and face-to-face meetings. o We will allocate budget to expand the program to reach more businesses and make them aware of needed services. 20A-13 Estimated cost for the deliverables are below. Website Monthly Maintenance (12 Months) PR flan +Monthly Maintenance (12 Months) Social Strategy + Monthly Maintenance (12 Months) Social + Website Content Grow Conference Taste Of Santa Ana Business Expo Retention initiative TOTAL fiSApoo 3tleeoo 3980 fS0.Po4 3+Pwo SI0.W0 f3oAW 20K-14 $18,000 $118,000 $58,000 $40,000 $50,000 $40,000 $10,000 $30,000 $500,000 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so Included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # _ Issued to Countersigned by this endorsement form as a part of Insured Authorized Representative 20A-15 20A-16 Chamber Economic Development Council Roster Sharon Barlow Sharon & Sons Floor to Ceiling/ SSAMA Owner Charles Berman WestPac Wealth Partners Wealth Advisor Stu Betti Spyglass Investments Partner Phil Calhoun Beta Benefits Owner Ryan Chase Downtown Inc Owner Sheree Coates Santa Ana District Office Community Outreach Lee De Leon Templo Calvario Community Development Executive Director Corp Robert Duncan Caribou Industries Vice President David Elliott Santa Ana Chamber of Commerce President/CEO Neil Evans Apropos Communications, Inc. Director Bill Fennessy THINK Together Outreach Coordinator Yanet Gonzalez Templo Calvario Community Development Executive Director of Development Hassan Haghani City of Santa Ana Director of Planning Tony Hatch Santa Ana Chamber of Commerce Dir of Marketing & Communications Jack Haley Lee & Associates Commercial Real Estate Executive Heather Hilderbrand DataMart Outreach Director Ron Hopkins Cross Media Resources Owner Jocelin Jimenez Orange County Business Council Economic Development RJ Kirschner Threat Management & Protection Owner Ed Lieber ELLS epa's and Business Advisors Partner Susie LopezGuerra Santa Ana Unified School District Outreach Director John Lower Iteris Inc. Owner Jonathan Maher MainPlace General Manager Mark McLoughlin J. Crain Corporation Owner Marc Morley City of Santa Ana Economic Development Specialist Leila Mozaffari Orange Councy SBDC Executive Director Tom Nguyen Integrity Escrow Owner Mavel Ramos Wells Fargo Bank Education Director Raul Rodriguez Rancho Santiago Community College District Chancellor Alice Rogan Orange County Transportation Authority Government Relations Ryan Smolar Consultant, Downtown Inc Consultant Marci Trevino University of California Irvine Associate Director Michael Weisman DGWB President Michael Wheeler Discovery Cube Orange County Executive Vice President Chris Yates MainPlace Marketing Director 20A-18 CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: APPROPRIATION ADJUSTMENT TO CONTRIBUTE TO THE CITY'S PENSION STABILITY FUND (STRATEGIC PLAN NO. 4, 1) (SURPLUS ALLOCATION FUNDING) CITY MANAGER RECOMMENDED ACTION CLERIC OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Approve an Appropriation Adjustment to appropriate $500,000 from Fund Balance, resulting from Fiscal Year 2015-16 (General Fund), for the City's contribution to the Public Agency Retirement Services account for the purpose of pre -funding pension obligations. DISCUSSION In 2012, the Government Accounting Standards Board (GASB) issued Statement No. 68, Accounting and Financial Reporting for Pensions and to be reflected in the City's Financial Statements as of June 30, 2015. Specifically, Cities are required to disclose their unfunded pension obligations for their defined benefit plans (CaIPERS) within their Balance Sheet. The City's unfunded pension obligations as of June 30, 2015 totaled approximately $417 million. However, the City's overall net position approximated a positive $800 million after implementing the unfunded pension liability as required by GASB 68. On June 21, 2016, the City elected to establish a Pension Stability Reserve (Reserve) totaling $500,000. The Reserve was established to offset and/or pre -fund the City's unfunded pension obligations. Additionally, the funds were assigned and reflected in the City's Comprehensive Annual Financial Report as of June 30, 2015. During the establishment and related budget process for FY 2016-17 Budget, Staff identified Assigned Programs for which the City may contribute an additional $500,000 to its Reserve. Continued contribution to the Reserve allows for the City to implement its strategy in addressing its unfunded pension obligations and set-aside funds in the event of continued increased in CaIPERS Employer Contribution Rates. 20B-1 Appropriation Agreement to Contribute to The City's Pension Stability Fund December 20, 2016 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's effort to meet Goal #4 — City Financial Stability, Objective #1 (maintain a stable, efficient and transparent financial environment). FISCAL IMPACT Approval of the Appropriation Adjustment will designate $500,000 from Fiscal Year 2015-16 General Fund ending fund balance to the following account: Finance & Management Services (Management & Support Services) — Pension Stability — 01110100-62303 in the amount of $500,000. Currently, the City has elected to invoice and pay PARS (administration and investment management fee) directly. Fees assessed and invoiced by PARS to the City are subject to amount of funds (Plan Contributions) transferred by the City for an amount of $10,000 based on the plan contribution assumptions. The fee will be budgeted and available in the Finance Management and Support Services account (01110100-62300) as follows: Fiscal Year Amount 2016-17 $ 3,333 2017-18 $ 3,333 2018-19 $ 3,334 However, in future fiscal years the City will analyze plan assets to determine if investment gains are sufficient to offset any incurred fees (Annual Asset Fee). Thus, the City would not be invoiced and the Annual Asset fee will be paid directly from Plan Assets. APPROVED AS TO FUNDS AND ACCOUNTS: "t��ce�yoT. NZ, r 0 Francisco Gutierrez Executive Director Finance and Management Services Agency SV 20B-2 0, • 0 CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: CONTRACT AWARD TO GUARANTY CHEVROLET MOTORS, INC., A SANTA ANA VENDOR, FOR ONE CHEVY PASSENGER VAN (SPEC. NO. 16-134) {STRATEGIC PLAN NO. 6,2) r CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO Authorize a one-time purchase and payment of purchase order to Guaranty Chevrolet Motors, Inc. for the purchase of one Chevy 2500 passenger van in an amount not to exceed $29,530 plus a contingency of $1,475 for a total amount of $31,005, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION In the last few years the Police Department Explorer post has grown from 10 — 15 explorers to now over 30. With the continual growth of the Explorer post, requests for their assistance and participation at various functions within the city, county and greater Southern California area have grown. A van designated for this program will provide a proper, safe and reliable means of transportation and the advisors as a group. Although the van will be assigned to and the responsibility of the explorer post coordinator and the Commander overseeing the group, it can and will be used by others groups such as Backgrounds for recruiting events. For years, the police department has had to rely on others to transport our explorers to and from events and functions. Because the department did not have a regular and reliable means of conveyance for transporting a large number of explorers, parents, friends and others frequently stepped up and provided this service. Acquiring a multi -seat van would reduce the department and city's liability exposure by ensuring our explorers are safely transported as a group by an explorer advisor or advisors. For vans, sport utility vehicles, sedans and light trucks, the City has standardized on purchasing Chevrolet vehicles. Of the seven auto dealerships identified within the City of Santa Ana, the City has one Chevrolet dealership. In order to ensure awareness as to the City's pending bids as well as the City bid process, Fleet staff have communicated and met with the local dealership on 22A-1 Contract Award for one Chevy Passenger Van December 20, 2016 Page 2 numerous occasions. As a result we are able to include our local Chevrolet dealership in all Invitation for Bid (IFB) processes. As part of the City Council approved Local Preference Program, all local vendors for such purchases receive a 1 percent preference when evaluating their total bid. The local vendor has been successful on 80 percent on the City's past five bids for Chevrolet vehicles. The Notice Inviting Bids was advertised on October 25, 2016, on the City's online bid management and publication system. A summary of the bid invitations and bids received is as follows: 58 Vendors were notified 6 Vendors downloaded the bid packet 4 Bids received 1 Bid received from Santa Ana vendor The bids were opened on November 22, 2016 and evaluated (Exhibit 1). The bid received from Guaranty Chevrolet Motors, Inc., a Santa Ana vendor, is responsive to the specifications and meets the City's requirements. To allow for unanticipated charges, a five percent contingency has been included in the award amount. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal #6 — Community Facilities & Infrastructure, Objective #2 (address deferred maintenance on City buildings and equipment). FISCAL IMPACT Funds in the amount of $31,005 are available in FY 2016-17 Police Department Central Distribution Center account (01114450-66400). Carlos Rojas Chief of Police Santa Ana Police Department CLlsp EXHIBIT: 1. Abstract of Bids APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency 22A-2 ABSTRACT OF BIDS CHEVY PASSENGER VAN (16-1 $29,234.31 EXHIBIT 1 22A-3 Courtesy Guaranty Chevrolet Zenith Sales of Bidder Chevrolet Center Motors, Inc. Reynolds Buick, Inc. Indiana Location San Diego Santa Ana Covina Greendale, IN Terms Net 30 Net 30 2% 30 days Not provided Delivery 60 - 80 days Not provided 60 - 90 days Not provided Cost $30,117.96 $29,529.60 $32,480.39 $63,949.25 1% vendor $295.29 preference $29,234.31 EXHIBIT 1 22A-3 22A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: CONTRACT AWARD TO GUARANTY CHEVROLET MOTORS, INC., A SANTA ANA VENDOR, FOR ONE CHEVY TAHOE SUV (SPEC. NO. 16-135) {STRATEGIC PLAN NO. 6,2) (SURPLUS ALLOCATION FUNDING) L c CITY MANAGEK RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: TWUMSAWC ❑ As Recommended ❑ As Amended ❑ Ordinance on 10' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize a one-time purchase and payment of purchase order to Guaranty Chevrolet Motors, Inc. for the purchase of one Chevy Tahoe SUV in an amount not to exceed $48,435 plus a contingency of $2,420 for a total amount of $50,855, subject to non -substantive changes approved by the City Manager and City Attorney. Project in accordance with the Council approved Surplus Allocation Plan as of October 20, 2015. Department: Project: Category Total Funding: Finance and Management Services Agency Vehicle Replacement Facilities/Assets $1,300,000 DISCUSSION The Finance and Management Services Agency, Facilities, Fleet Maintenance and Central Stores Division is responsible for the acquisition, maintenance, repair, and replacement of vehicles, trucks, and maintenance equipment. The City's Vehicle Replacement Policy provides guidelines and criteria for determining when vehicles need replacement. This criteria includes vehicle age, mileage, maintenance costs, and safety history. As a result of reviewing the City's replacement criteria, one Utility SUV purchased in 1999 with 83,000 miles has been identified for replacement. For vans, sport utility vehicles, sedans and light trucks, the City has standardized on purchasing Chevrolet vehicles. Of the seven auto dealerships identified within the City of Santa Ana, the City has one Chevrolet dealership. In order to ensure awareness as to the City's pending bids as well as the City bid process, Fleet staff have communicated and met with the local dealership on numerous occasions. As a result we are able to include our local Chevrolet dealership in all Invitation for Bid processes. As part of the City Council approved Local Preference Program, all local vendors for such purchases receive a one percent preference when evaluating their total bid. The local vendor has been successful on 80 percent on the City's past five bids for Chevrolet vehicles. 2213-1 Contract Award for a Chevy Tahoe SUV December 20, 2016 Page 2 The notice inviting bids was advertised on October 26, 2016, on the City's online bid management and publication system. A summary of the bid invitations and bids received is as follows: 58 Vendors were notified 6 Vendors downloaded the bid packet 2 Bids received 1 Bid received from a Santa Ana vendor The bids were opened on November 22, 2016 and evaluated (Exhibit 1). The bid received from Guaranty Chevrolet, a Santa Ana vendor, is responsive to the specifications and meets the City's requirements. To allow for unanticipated charges, a five percent contingency has been included in the award amount. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal #6 — Community Facilities & Infrastructure, Objective #2 (address deferred maintenance on City buildings and equipment). FISCAL IMPACT Funds are available in FY 2016-17 as follows: $40,000 in the Council Special Projects - Finance Fleet Maintenance account (05010022-66400) and $10,855 in the Equipment Replacement account (07010100-66400). APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency CL/sp EXHIBIT: 1. Abstract of Bids 228-2 ABSTRACT OF BIDS CHEVY TAHOE SUV (16-135) Location Terms Delivery Actual Cost 1 % vendor preference Guaranty Chevrolet Motors, Inc. Santa Ana Net 30 Not provided $48,432.52 $484.32 $47,948.20 * EXHIBIT 1 22B-3 Reynolds Buick, Inc. Covina 2% 30 days 60 - 90 days $49,655.69 22B-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE. AWARD CONTRACT TO HARDY & HARPER, INC., FOR PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD PROJECT (PROJECT NO. 17-6888) (STRATEGIC PLAN NO. 1, 3B) CITY MANAGER, RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: iN ❑ As Recommended ❑ As Amended ❑ Ordinance on 1a1 Reading Ordinance on 2no Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Authorize the City Manager and Clerk of the Council to award and execute a construction contract to Hardy & Harper, Inc., the lowest responsible bidder, in accordance with the base bid plus Additive Alternates 1, 2, and 3, in the amount of $278,000, for the term beginning upon execution of the contract and ending upon project completion, to install Pedestrian Improvements on Santa Ana Boulevard, subject to non -substantive changes approved by the City Manager and the City Attorney. 2. Approve the Project Cost Analysis for a total estimated construction delivery cost of $347,500, which includes the construction contract, administration, inspection and testing, and an authorized contingency of $27,800. DISCUSSION The recommended actions will enable the City to proceed with the installation of safety enhancements to increase pedestrian walkability and improve intersection safety for all users. The project consists of constructing sidewalk, curb ramps, curb, gutter, pavement, Rectangular Rapid Flashing Beacons (RRFBs), signage, and striping on Santa Ana Boulevard between Lacy Street and Poinsettia Street (Exhibit 1). A Notice Inviting Bids was advertised on October 26 and November 2, 2016, and bids were opened on November 17, 2016. The following is a summary of the bid invitations made and the bids received: 23A-1 Contract Award For Pedestrian Improvements on Santa Ana Boulevard December 20, 2016 Page 2 Contractor Participation Data Santa Ana contractors receiving notices 11 Contractors requesting bidding documents 11 Bids received 4 Bids received from Santa Ana contractors 1 Bid Results Summary RANK BIDDER'S NAME LOCATION BASE BID BASE BID + Alt. 1, 2, & 3 1 Hardy & Harper, Inc. Santa Ana $213,000.00 $278,000.00 2 All American Asphalt Corona $218,952.00 $281,237.00 3 EBS General Engineering, Inc. Corona $236,200.00 $312,600.00 4 Excel Paving Company Long Beach $244,247.00 $331,023.00 Four bids were received and all were considered responsive. The lowest responsive bid, in the amount of $278,000, was submitted by Hardy & Harper, Inc., (Exhibit 2) and is comparable to the engineer's estimate of $214,000. The advertised bid document was divided into base bid and several alternates. The base bid was used to identify the low bidder, and the alternates could be used in any combination to maximize the use of project grant funds and value to the City. Hardy & Harper, Inc., submitted a base bid of $213,000 and $65,000 for Additive Alternates 1, 2, and 3, for a total amount of $278,000. Staff recommends awarding the contract to Hardy & Harper, Inc., in the amount of $278,000, which includes the base bid plus Additive Alternates 1, 2, and 3 (Exhibit 3). STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #1 - Community Safety, Objective #3 (promote fiscal accountability to ensure financial responsibility at all levels of the organization), Strategy B (promote ongoing efforts to obtain grant funding for activities that will assist in preventing, enforcing and reducing criminal activity and traffic collisions). ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempt from further review. Categorical Exemption Environmental Review No.2016-126 was filed for the project. 23A-2 Contract Award For Pedestrian Improvements on Santa Ana Boulevard December 20, 2016 Page 3 FISCAL IMPACT The estimated total delivery cost of the project is $347,500, which includes construction, contract administration, inspection, testing, and contingencies (Exhibit 4). Funds are budgeted in the Select Street Construction expenditure account (Account No. 05917660-66220, Project No. 17- 6888) for expenditure in Fiscal Year 2016-17. APPROVED AS TO FUNDS & ACCOUNTS: Fr d M us vipour Francisco Gutierrez�L Executive Director Executive Director Public Works Agency Finance & Management Services Agency FM/EWG/TC/MO Exhibits: 1. Location Map 2. Bid 3. Construction Contract 4. Cost Analysis 23A-3 23A-4 EXHIBIT 1 SANTA ANA PROJECT 17-6888 �1^ AGENDITY A DATENCIL PEDESTRIAN IMPROVEMENTS ON AGENDA DATE: DEC. 20, 2016 SANTA ANA BOULEVARD WBL IC BMtS a4SxCY 23A-5 PAGE 1 OF 1 23A-6 CITY OF SANTA ANA EXHIBIT 2 PROPOSAL PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: 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 suln(s) set forth in the following schedule: Item Description Qty Unit Unit Price Amount 1 Unclassified Excavation* 300 CY $® $ { 1 0000 2 AC Pavement* 350 TN $ wo $ ZJ�1 000 3 Cold Mill (>2")* 22,000 SF el (1��®® 4 Install PCC Sidewalk (4") 4,200 SF $ 'Y-7.00ca��P $ r 1®0 5 Install PCC Curb Ramp 900 SF $ 11 $ 41 1,00 6 Install PCC Curb and Gutter (Type A-2-8) 300 LF $ 5-® _1 $ t s" 000 7 Root Shave* 3 EA $ S^ cam. C3S� $ � 1 ro® 8 Adjust Water Valve Frame and. Cover to Finished Grade* 5 'EA $ 1!o®o $ 5r 000 r/li 9 Abandon Gato Valve* I EA $ $ k1000 10 Adjust Water Meter FralneBoxtoFinished . Grade* 1 EA $ d �7 $ R_06 lLl 11. Adjust Sewer and Drainage Manhole to Finished Grade* 7 EA $ Q� $ 100 12 Remove Fire Hydrant and Assembly* IEA I $ "1/ o oo $ (' occ 13 'Furnish and Install New Fire Hydrant* 1 EA $ P•1 of P-18 23A-7 CITY OF SANTA ANA PROPOSAL PROJECT NO,: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD Item Description Qty Unit Unit Price Amount 14 Furnish and Install New Survey Monument* 1 EA $ N r m) $ i 1 Q 00 15 Adjust OCSD Manhole Frame and Cover to Finished Grade* 1 EA $ tf Go $ 1 (20 t r 16 Signing and Striping 1 LS $3o ) POo $ ^� ®l I oo J 17 Temporary Construction Signs 2 EA $C? $ p '" I t 8 Install RRFB (Rectangular Rapid Flashing Beacon) System I LS A Irl �� 9 J $ �1• J TOTAL BASE BID $ I �J Add Alternative Bid "I" 14 Romeve Pole, Foundation, Solar Panel and Cabinet I LS V rox $ J Total Adel Alt 1 $ Add Alternative Bid "II" 20 Unclassified Excavation* 20 CY $ 500 $ 1 oClp'g 21. Install PCC Sidewalk (4") 800 SF 'I'm $ 6,1600 �Q% tJ 22 Install PCC Curb Ramp 300 SF $ , � $ .3N'00— 3 ' 00 23 Install PCC Curb and Gutter (Type A-2.8) 100 LF $ $ '57 b® 24 Root Shave* 1 EA $ TOO 25 Abandon Gate Valve* 1 EA $ k' U ®® $ � 1000 26 Remove Fire Hydrant and Assembly 1 EA 1"7roo® {$ 1-7,®®c) 27 Famish and Pistall New Fire Hydrant 1 BA $' r � t 28 Adjust Water Meter Frame Box to Finished Grade* I EA $ (Poo $ 00 Total Add Alt 2 An P-2 of P-18 23A-8 Kr a; CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD Add Alternative Bid "III" Item Description Qty Unit Unit Price Amount 29 Unclassified Excavation* 30 CY $ � SIS�or, 30 Install PCC Sidewalk (4") 1300 l� '11100 qII00 31 Install PCC Curb Ramp 300 SF $ d 3*v 32 Install PCC Curb and Gutter (Typo A-2-8) 100 LF $ 6_0 $ 5, o o® 33 Furnish and Install New #6 Pullbox* 3 FA $ -700 $ 1100 Total Add Alt 3 $ 1000 TOTAL (BASE BID) $ C1 00 m+� r TOTAL (BASE BID + ADD ALT. 1) $ TOTAL (BASE BID + ADD ALT. 2) $ <°1 s�s'�i TOTAL (BASE BID + ADD ALT. 3) $ 3 TOTAL (BASE BID 1- ADD ALT. 1 + ADD ALT. 2) $ TOTAL (BASE BID + ADD ALT. 2+ ADD ALT. 3) $ 3,004 r TOTAL TOTAL (BASE BID + ADD ALT. 1+ ADD ALT. 3) $ TOTAL (BASE BID + ADD ALT. I + ADD ALT. 2+ ADD ALT. 3) $ P-3 of P-18 23A-9 01 CITY OF SANTA ANA PROPOSAL PROJECT NO,: 17-6888 PEDESTRIAN IMPROVEMENT'S ON SANTA ANA BOULEVARD 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, all, or none of the add -alternate bid items (if any). The quantity for this bid item is shownfor 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. This bid item is considered a Specialty Item per Section 2-3.2 of the Standard Specifications. TIME FOR COMPLETION OF IMPROVEMENTS AND LI f UIDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within number (35) working days after the cormnencement date stated in the Notice to Proceed. The liquidated damages amount, in lieu of the amount specified- in Subsection 6-4 of the Standard Specifications, shall be $1,000 per calendar day. Name of Firm Signature of SI] Title SteveKirschner- Vice President (If an individual, so state. If a firm or co -partnership, state the firm name and give the frames of all individual co-partners composing the fine. If a corporation, state legal name of corporation, and names of President, Secretary, Treasurer and Manager, thereof.) Please see attachment "A" P-4 of P-18 23A-10 Attachment A %Ldy 61,V4rper, Inc, Corporate Officers Fred 11, Maas, Jr., P—esideaat., Treasuu er -- � 1312 E. 'Warner Avenue hole: (714. 114A�-1851 5asrta Arra, CA 92`105 Dan b T. �flaas, CEO, znug �$'lI-ex 3,12 E. arzzer eve rue 5aztica Ana, CA 92703 Steve lCreclnier, Vice presiclent 1312 E.'arnex Avenue %21c 16 ^14 444-1851 . —_._ _..._.__. Santa Aria, CA 92705 _,�...._._,_,....._.—_ _— 5 C�oro), Knn�schrier, -1/F0 1312 E, Warner A Yeaue hone !14 4Q4•-1851 Santa Ana, CA 92705 Kxistcrl S„ Raninlo, Corp oxate Secretary 1312 E. Wanier A- eaue l 01 e 71Gk 14s lIIs1 T ant a. <'4..na, C4 92705 23A-11 CITY OF SANTA ANA PROPOSAL PROSECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD 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 after it has been accepted by the City Council, endorsed by the Clerk of the Council with her signature and official seat noting hereon the action of approval of the Council, signed by the Public Works Agency Executive Director or his/her dulyauthorized 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 beeneitherdelivered 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 tate 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 abalanced 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 Signature of BE Title _ Steve Kirschner -Vice President (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 names of President, Secretary, Treasurer and Manager, thereof,) P-5 of P-18 23A-12 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD CONTRACTOR'S LICENSING AND REGISTRATION STATEMENT The undersigned contractor, or corporate officer, declares under penalty of perjury that he/she and all his/(ter subcontractors are registered with the State of California Department of Industrial Relations (DIR), and that the following is true and correct. Contractor's Name: Hardy & Harper, Inc Business Address: 1312 H. Warner Ave., Santa Ana, CA 92705. Business E -Mail Address: skirschner@hard ndhar er.cocn Telephone: 714-444-1851 State Contractor's License No. and Class: 215952; A, C-8, C12 License Expiration Date: 12/31/17 State Dept. of Industrial Relations (DIR) Registration No.: _ 1000000076 State Dept. of Signed: Title: Steve Kirschner - Vice President 6/30/17 P-6 of P -l. S 23A-13 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD PREVAILING WAGE COMPLIANCE AND MONITORING STATEMENT Contractor is aware of the requirements of California Labor Code Section 1720, et 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 frilly 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 hold 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 Signature of BE Title Vice President (if an individual, so state) P-7 of P-18 23A-14 CITY OF SANTA ANA PROPOSAL PROTECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD OWNERSHIP AFFIDAVIT STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS: CITY OF SANTA ANA ) Steve Kirschner , 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 -partnership. Q CORPORATION That he is of: _ Vice President of Hardy & Harper, Inc a corporation which is making the foregoing proposal: JOINT VENTURE That he is of: one of the parties making the foregoing proposal as a joint venture, and the he/she has been mid 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 0 ollusio1l to ecure an duantage against the City of Santa Ana or any person interested in the propo n r him or any other person. Signature of Bidder Steve Kirschner -Vice President Subscribed and sworn to before me this _T day of _ 20 — Signature of officer Administering Oath (Notary Public) P-8 of P-18 23A-15 CALIFORNIA JURAT WITH AFFIANT STATEMENT GOVERNMENT CODE § 8202 Cl See Attached Document (Notary to cross out lines 1-6 below) U See Statement Below (Lines 1-6 to be completed only by document signer[s], 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 =02AM01 NTV Seal Piece Notary Seal Above Subscribed and sworn to (or affirmed) before me on this ----14— day of November 20 16 , by Date Month Year (and (2) ), Name(4 of Signer) proved to me on the basis of satisfactory evidence to be the person( who apppeeared\ before me. N — Signature-�~�`�� 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 town unintended document. Description of Attached Document Title or Type of Document: Proposal __ Number of Pages: --I-- Signer(s) Other Than Named Above: Document Date: November 1426 None k�.t.'fif(''C`t�-'�iGS-�'GXSr„�h44`�G`P'G'�%C':!?G`4F+ �4'�v_'-�. a`Ii(iL-4`I,:4+"�(.`�'��•tim4"'.L^?4`4Ggtisx.U`L�.'^GY10`4�C,Y7a�4Y(:esdn�zX%C+LC•`SX�Rv;�"42�'.<.Y 02014 National Notary Association • www.NationalNotary.org • 1.800 -US NOTARY (1-800-876.6827) Item 15910 23A-16 CITY OF 'SANT` ANA Bond No. CSBA-3552 PROPOSAL, PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD BID BOND KNOW ALL PRESENT that, Hardy & Harper, Inc. as BIDDER, and Fidelity and Deposit Company of Maryland 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% ***'k* 1, 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 15Th day of November 2016 BIDDER* 1312 E. Warner Avenue SURETY* 777 South Figueroa Street, Suite 3900 Fidelity and Deposit Company of Maryland Los Angeles„ CA 90017 (213) 2.70-0600 A Subscribed and sworn to before me ,20—, Signature: Notary Public in and for the County of 516-1232 this day of , State of Provide BIDDER/ SURETY name, address, and telephone number and the name, title, address, and telephone number of authorized representative. P-9 of P-18 23A-17 ACKNOWLEDGMENT 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 validitV of that document. State of California County of _w Orange ) On November 15 2016 before me, Susan Pugh Notary Public (insert name and title of the officer) personally appeared Dwight Reilly _ , who proved to mean the basis of satisfactory evidence to be the person(s) whose name(s) is/are Subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 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, susaN pueH SS�� COMM. #21tl50.05 ^vm' S:'+' < Notary Puhlic-0alifornla ` -" ORANGH COUN'T'Y ': My Camm. �piraaApr28;�0i@ Signature (Seal) 23A-18 ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by MICHAEL BOND, Vice President, in pursuance of authority granted by Article V, Section 8, of the By -Laws of said Companies, which are set forth on the reverse side bereo£ and are hereby certified to be in fall force and effect on the date hereof, de hereby nominate, constitute, and appoint Daniel HUCKABAY, Dwight RE ILLY, Andrew WATERBURY, Arturo AYALA, Shaunna BURCHFIEL and Michael CASTANEDA, all of Orange, California, EACH its true and lawful agent and Attorney -in -Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland., in their own proper persons. The said Vice President does hereby certify that the extract set forth on. the reverse side hereof is a true copy of Article V, Section 8, of the By -Laws of said Companies, and is now in force. IN WITNESS WHEREOF, the said Vice -President has hereunto subscribed his/her names and affixed the Corporate Seals of the said ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 9th day of May, A.D. 2016. ATTEST: By Secretary Eric D. Barnes ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND � �y OtaOsrr ,a`Wp}) INs�y� BBAI, � fid Fkm'4 Y n aw ALP 1J Vice President Michael Bann State of Maryland County of Baltimore On this 9th day of May, A.D. 2016, before the subscriber, a Notary Public of the State of Maryland, duly comnilssioned and qualified, MICHAEL BOND, Vice President, and ERIC D. BARNES, Secretary, of [tie Companies, to me personally ]mown to be the individuals and offoers described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly sworn, deposeth and saith, that he/she is the said officer of the Company aforesaid, and that the seals affixed to the promlling instrument are die Corporate Seals of said Companies, and that the said Corporate Seals and the signature as such officer were duly affixed said subscribed to the said instrument by the authority and direction of the said (Arpet9tle08. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and you first above written. ''/ltlfll1111\\�\ POA -F 012-00796 Constance A. Dunn, Notary Public My Commission Expires; July 9, 2019 23A-19 e EXTRACT FROM BY-LAWS OF THE COMPANIES "Article V, Section 8, Attorneys -in -Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President may, by written instrument under the attested corporate seal, appoint attorneys -in -fact with authority to execute bonds, policies, reeognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such attorney -in -£act to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority atany time." CERTIFICATE I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, mid the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in Rill force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of the By -Laws of the Companies is still in force. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998. RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary and the Seal of the Company may be affixed by facsimile on any Power of Attorney—Any such Power or any certificate thereof bearing such facsimile signature and seal shall be valid and binding on the Company." - This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and hold on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice -President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force mid effect as though manually affixed. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies, this 15thday of November 2016 . oro oJ4 hN........ ,y l A X.-a -�' At Gerald F. Haley, Vice President TO REPORT A CLAIM WITH REGARD TOA SURETY BOND, PLEASE SUBMIT ALL REQUIRED INFORMATION TO: Zurich American Insurance Co. Attn: Surety Claims 1299 Zurich Way Schaumburg, IL 60196-1056 23A-20 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 °ta;sia(+,a�.[�fu':C`�r.E,d"{•,sg'--ak;i`Q^Y`,cYx�ib-Yu.Y'c:Cmc`f7.hn'.�x'iC`2':Cf3X�vC&�c'Ss:Gc:CeiUs�`�i£�£�`.C;c-McuS'�f's';.i`csif'�fraficS.t^S 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 ) On November 15. 201 Fes-_ before me, Tlna Pham Notary Public Date Here Insect Name and Title of the Officer personally appeared Steve irsch er NameXof Signer who proved to me on the basis of satisfactory evidence to be the person(g) whose name(8) is/axe subscribed to the within instrument and acknowledged to me that he/stfe/tnoy executed the same in his/hoer/their authorized capacity(iet), and that by his/hor/their signature(g) on the instrument the person(s), or the entity upon behalf of which the person(g) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph qt is true and correct. TINA PRAM i` WITNESS my hand and official seal. COMM.#21493&4 m � �Notary Public-Calitornla LL ORANGE CQUNTY Signature — ----- My Oemm. ExpUes Apr 17, 2020 Sign ture of Notary Public Place Notary Seal Above 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: Bid Bond Document Date: November Number of Pages: 1 Signer(s) Other Than Named Above: None Capacity(ies) Claimed by Signer(s) Signer's Name: Steve Kirschner © Corporate Officer — Title(s): vire mariont 0 Partner — 0 Limited 0 General 0 Individual 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: _ Harte & Narper Inc Signer's Name: 0 Corporate Officer — Title(s): 0 Partner — 0 Limited 0 General •individual 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: tCc�ae-L'W_'R:C:`e✓�c4'c4wz' .c`X>4FLe%`*-Grz;?=!:£' �e+Fr'.:4'4;t,`44cX-'s-C<.()r v�:R.Lc.z^z 4r.Gr.,(',c%G� ."v.%Ge�� '4%Gv;C:¢z.c.<,;fir F�, LSq..z.G�;<Y�;c @2014 National Notary Association • www.NatiorialNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item t#5907 23A-21 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-5888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD LIST OF SUB -CONTRACTORS Section 4100 et. seq. of the Public Contract Code requires listing of all subcontractors with the bid for all subcontract work exceeding the following amount: o Streets, highways including bridge projects: `/a% of the bid or $10,000, whichever is greater o Buildings, parks; or other projects: '/z% of the bid Section 1725.5 of the Public Contract Code requires all Subcontractors be registered with the State Department of Industrial Relations (DIR). BIDDER proposes to subcontract certain portions of the work to the firms listed below: Name G -A I License #/Exp. DIR Reg, 4/Exp. Location Phone l Type Of Work Amount $ Name 0( 5-hjVrB9 Se_r1)i&C, License #/Exp. J :5'fr0109. , ' DIR Reg, #/Exp. p !7 i1m n n 5S'qr License # Location ocoritg / e Phone (11 (o. Ape Amount Work— 5 n i Amount $ Name License #/Exp. DIR Reg. 4/Exp. License Location Phone Name License 4/Exp. DTR Reg. #/Exp. Location Phone Type Of Work Amount $ Naive License #/Exp. DIR Reg. #/Exp. License # _ Location _ Phone Type Of Work Amount $ Name License #/Exp. DIR Reg.#/Exp. License # Location Phone Type Of Work Type Of Work Amount $ Amount $ Signature of. Bidder SteveKirschner-VicePresident P-10 of P-18 23A-22 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD REFERENCES The following are the names, addresses, and telephone numbers for THREE public agencies for which the BIDDER has performed similar work within the past three years. 2. 3. Please see Name and) �sv a 'Owner. Name and Telephone Number of person familiar with project. Contract Amount Name and Address of owner. Type of Work Name and Telephone Number of person familiar with project. Contract Amount Name and Address of owner. Type of Work Name and Telephone Number of person familiar with project. Contract Amount Type of Work Date Completed Date Completed Date Completed The following are the names, addresses, and telephone numbers of all brokers and sureties from whom BIDDER intends to procure insurance and bonds. Surety: Fidelity & Deposit Company of Maryland; 777 S. Figueroa St, Los Angeles, CA 90017 (213) 270-0600 Agent: Commercial Surety Bond Agency; 1411 N. Batavia St, Orange, CA 92867 (714) 516-1232 P-11 of P-18 23A-23 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD ADDITIONAL REFERENCES The following are the names, addresses, and telephone numbers for THREE public agencies for which the BIDDER or Subcont actor has performed similar work in the past five years. 1, Please see attachmen(. KX-Sk ti Name and Address of Owner. 2. Name and Telephone Number of person familiar with project. Contract Amount Name and Address of owner. Type of Work Name and Telephone Number of person familiar with project. Contract Amount Name and Address of owner. Type of Work Name and Telephone Nlunber of person familiar with project. Contract Amount Type of Work Date Completed Date Completed Date Completed The following are the names, addresses, and telephone numbers of all brokers and sureties from whom BIDDER intends to procure insurance and bonds. Surety: Fidelity& Deposit Company d Maryland• 777 S. Figueroa St, Los Angeles, CA 90017 (21.3) 270-0600 Agent: Cormne•cial Surety Bond Agency; 1411 N. Batavia St, Orange, CA 92867 (714) 516-1232 P-12 of P-18 23A-24 M PUBLIC WORKS REFERENCES Attachment/b 2015/2016 Owner/Agency Contact Project (Amount & Completion Date) City of Pasadena Richard Yee Preventitive Maintenance 100 N Garfield Ave (626) 744-4643 Street FEDERAL ID NO. Pasadena, CA 92570 STPL-5064(081) $1,518,2.31.24 8/15 City of Covina Natalie Avila Resurfacing of Streets at 125 E. College Street (626) 384-5400 Hollenbeck Ave, Cypress St, Covina, CA 91723-2199 RAv_i�aCyoovin�c�ov_ $624,297.95 8/15 City of Laguna Niguel Frank Borges St, Christopher Neighborhoods 30111 Crown Valley Parkway (949) 362-4325 & Via Vetti Pavement Rehab Laguna Niguel, CA 92677r asd,ityQf[u n ni_ual.or-q Improvement No. 15-02 $1,226,861.00 9/15 City of Norco Bill Thomas FY 2015-16 Annual Minor 2.870 Clark Ave (951) 735-3900 Street Rehabilitation Phase I Norco, CA 92860 $777,000.00 10/15 City of Walnut Natalie Avila, RE Area 1 & 2 Street 21201 La Puente Rd, (909) 594-9702, Ext. 315 Resurfacing Project Walnut, CA 91789 navilo,& agroupcom $1,077,000.00 11/15 City of Rancho Cucamonga Romeo David Foothill Blvd Pavement 10500 Civic Center Drive (909)477-2740 Rehabilitation Rancho Cucamonga, CA 91730 ELoryipc.bavic acityol9aus$1,076,200.00 11/15 City of Norco Bill Thomas FY 2015-16 Annual Minor ^ 2870 Clark Ave (951) 735-3900 Street Rehabilitation Phase 11 Norco, CA 92860 $547,000.00 11/15 City of Simi Valley Fuad Shameut, P.E W FY 2015-16 Annual Minor 2929 Tapo Canyon Road (805) 583-6788 Street Rehabilitation Simi Valley, CA 93063 FShannouL&dinlyLa e�Lo1a1 $1,213,960.50 11/15 23A-25 PUBLIC WORKS REFERENCES Attachment A;(3 2015/2016 Owner/Agency Contact Project's Info City of Redondo Beach Lauren Sablan, P.E Aviation Blvd Resurfacing 415 Diamond Street (310) 318-0661 Project Redondo Beach, CA 90277 L�urM-9—aatxlai (n) tlondomorcu $367,293.00 12/15 City of Palm Desert Bo Chen, P.E Portola Ave STP Rehabilitation 73-510 Fred Waring Drive (310) 370-5099 Project Palm Desert, CA 92260becPren rinfpalrndes�rl.a� $639,204,74 2/16 City of Lake Elsinore Ken Rukavina FY 15-16 Citywide Pavement 130 South Main Street (951) 674-3124 Rehab Phase 5 Lake Elsinore, CA 92530ukavin�, Oke-elsinare.nrcr $560,736.74 2/15 City of Lake Elsinore Ken Rukavina FY 15-16 Citywide Pavement 130 South Main Street (951) 674-3124 Rehab Phase 4 Lake Elsinore, CA 92530 ki?vinn ha e-dss!iigup,P!J $895,665.91 3/16 City of Colton Jess Sotto FY 15-16 Asphalt Paving 650 N. La Cadena Drive (909) 370-5099 Project Colton, CA 92324 $1,569,242.84 4/16 City of Pasadena Sean Singletary Preventitive Maintenance of 100 N, Garfield Ave (626) 744-4273 Streets 2015 Pasadena, CA 91109 gsnita uofa sq en .nat$1,182,829.46 4/6116 City of Westminster Tuan Pham Citywide Street Improvement 8200 Westminster Blvd (714) 898-3311 For Various Residential Streets Westminster, CA 92683 ph�rr vwcsrrilm r -.a.21 $679,108,61 5/16 City of Arcadia Jan Balanay Pavement Rehab Program 240 West Huntington Dr (626) 256-6582 Camino Real Ave & 6th Ave Arcadia, CA 91066 Project # 33854016 $632,386.21 7/16 City of Fontana Ticha Loera Pavement Rehab of Slover Ave 8353 Sierra Ave (909) 350-6696 From Mulberry Ave to Cherry Fontana, CA 92335t_Irontariai.o_r . Ave $1,313,161.86 8/16 City of La Canada Flintridge Greg Kwolek 2016 Citywide Street 1327 Foothill Blvd (818) 790-8880 Resurfacing La Canada Flintridge, CA 91011 gkwo(ka-)Jcf-ra av $1,O84,562.67 8/16 23A-26 rQUIi s_C .. M.:.. PROPOSAL PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD NON -COLLUSION AFFIDAVIT (Title 23 United States Code Section 11.2 and Public Contract Code Section 7106) In conformance 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 germine 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 agreement, communication, or conference with anyone to fix the bid price of the BIDDER or any other 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, further, 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. BIDDERS are cautioned that alci a false certification may subject the certifier to criminal 17 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 Notary Public Signature Notary Public Seal P-13 ofP-18 23A-27 CALIFORNIA JURAT WITH AFFIANT STATEMENT GOVERNMENT CODE § 8202 lY"4'L"- `fi�4c£e�-f..c-„'cs�dS' 2lY',t^,S3��Y'.c^CaY;�izrm,:rsf!:s;rCcY;xn:.;ss°`..C�.�E'C.s`,C;fruz..rs>as`ficcy`d.`Cds`bY`s,4'cSaGY}L^a.^"YAG ;C,i`E;fe'�"..rz-t�rt CI See Attached Document (Notary to cross out lines 1-6 below) Ct See Statement Below (Lines 1-6 to be completed only by document signer[s], not Notary) Signature of Document Signer No. i 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 TINA PNAM COMM.#214@384 Asa' Notrary PubIIC.CaI'r.mla a P"� ORANOE COUNTY �: My C4f0M F.xi Apr 17, 2020 Seal Place Notary Seal Above Subscribed and sworn to (or affirmed) before me on this —14-- day of November 2016, , by DateMonthYear (and (2)- _ ), NameO of Signer( proved to me on the basis of satisfactory evidence to be the person( who appeared before me. Signature 9""' -- 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: Non -Collusion Affidavit _Document Date: November 14, 22 Number of Pages: �Signer(s) Other Than Named Above: None 02014 National Notary Association • www.Nationa[Notary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5910 23A-28 CITY OF SANTA ANA PROPOSAL PROJECTNO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD NON-DISCRIMINATION CERTIFICATE The undersigned contractor or corporate officer, during the performance of this contract, certifies as follows: I. The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor 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 Contractor 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 Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 3. The Contractor 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 Contractor's cormmitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Contractor shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant order„ of the Secretary of Labor. 5, The Contractor shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rides, 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 Contractor's iron -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 Contractor may be declared ineligible for further Govelmrient 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 involved 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. P-1,4 of P-18 23A-29 CITY OF SANTA ANA PROPOSAI. PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD 7. The Contractor 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 means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor 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 I735, 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 contractor of public works viojeting this Section 's subject to all the penalties imposed for a violation o e napter. Signed: Title: Steve Kirschner -Vice President Finn: Hardy & Harper, Inc Date: 11/14/16 P-15 of P-18 23A-30 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD STATEMENT REGARDING APPRENTICESHIP REQUIREMENTS The undersigned BIDDER is familiar with the requirements of Section 1777.5 of the State Tabor Code regarding employment of apprentices, and understands that contractors on contracts exceeding $30,000 or 20 working days shall: 1. Apply to the joint apprenticeship committee administering the apprenticeship standards of the craft or trade in the area of the site of the public work for a certificate approving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. 1 Employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the apprenticeship standards. 3. Contribute to the fund or funds in each craft or trade in which he/she employs journeymen or apprentices on the public work, in the satire amount or upon the same basis and in the same manner as the other contra tors, except contractors not Signatory to the trust agreement shall pay a like ar t to the al' i is Ap nticeship Council. Signed: Title; SteveKirschner- VicePresident Firm; Hardy & Harper, Inc Date; 11/14/16 P-16 ofP-18 23A-31 CITY OF SANTA ANA PROPOSAI, PROTECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD STATEMINT,RF,GARDiNG "ANTI -KICKBACK" REQUIREMENTS The undersigned is submitting this proposal for performing by contract the work required by these bid documents, agrees to comply with the Copeland "Anti -Kickback" Act (18 USC 74) as supplemented in the Department of Labor regulations (29 CFR, Part 3), This act provides that each contractor or subcontractor shall be prohibited from inducing, by any means, any person employed in the construction or repair of public work, to give up any part of the compensation to which he/she is othejwise e ltilkd. , Signed: _ Lr�------- — Title: Steve 1G'rschner - Vice President Finn: Hardy & Harper, Inc Date: 11/14/16 P-17 of P-18 23A-32 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-6888 PEDESTRIAN IMPROVEMENTS ON SANTA ANA BOULEVARD PUBLIC CONTRACT CODE SECTION 10162 QUESTIONNAIRE In conformance with Public Contract Code Section 10162, the BIDDER shall complete, under penalty of perjury, the following questionnaire: Has the BIDDER, any officer of the BIDDER, or any employee of the BIDDER who has a proprietary interest in the BIDDER, ever been disqualified, removed, or otherwise prevented from bidding on, or completing a federal, state, or local goverrunent project because of a violation of law or a safety regulation? Yes No X If the answer is yes, explain the circumstances in the following space. P-18 of P-18 23A-33 MAYOR Miguel A. Pulldo MAYOR PRO TEM Vicente Sarmlento COUNCILMIEMBERS Angelica AmaMla P. David Benavides Mlohele Martinez Raman Reyna Sal Tinalero November 3, 2016 ADDENDUM No. One CITY OF SANTA ANA 20 Civio Center Plaza • P,O. Box 1088 M-36 Santa Ana, California 92702 J14) 647-6013 www Banta -arta = SUBJECT: PROJECT NO. 17-6888: Pedestrian Improvements on Santa Ana Boulevard CITY MANAGER David CavwoS CITY ATTORNEY Sonia R. Carvalho CLERK OF THE COUNCIL Marla D. Huizar The following changes have been made to the Contract Documents and Specifications for the subject project: • The bid opening date has been changed as indicated in the Notice Inviting Bids attached. All other terms and conditions remain the same. CITY OF SANTA ANA Edwin "William" Galvez, PE City Engineer 23A-34 SANTA ANA CITY COUNCIL. V19M A. Pull& Vicemo Sarmlenlu Mlcllale Mwtlnez A19o11ee Amwum R aavld Daravides rRomm Rayna Sal'nrw)"ro Mayor Mayor No Tom, Ward'I Ward2 Werd0 Wmi4 Wa[dt, Werd6 MR—L11LdoL"v&ft-W1 = MITILVSIl4C4ifi8AllV:B[]fl..QC9¢III14dIIL:Z,�.4illLH_90a.4r.4 lidlll4't44Li4Lailrila: npe.➢Cq.rwbeaav443IC11s_'slel'si;illli44J.4 L[£YL a�sPLHd:PI1d.Af9 u11pkI.4rPkP.rWNL1ta:42u•n 23A-34 23A- n 1 n � y � � r 23A- 23A-36 Exhibit 3 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT NO. 17-6888 PEDESTRIAN IMPROVEMENTS ALONG SANTA ANA BOULEVARD This CONSTRUCTION CONTRACT is made and entered into this 20 day of December, 2016, 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 Hardy & Harper, Inc., hereinafter referred to as "CONTRACTOR'. WITNESSETH: The CITY and the CONTRACTOR, for the consideration hereinafter named, mutually agree as follows: I. 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 PEDESTRIAN IMPROVEMENTS ALONG SANTA ANA BOULEVARD 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 • Technical Provisions and 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 hnprovement the sum total amount not to exceed $278,000 — Two Hundred Seventy-eight Thousand Dollars and no cents, as set forth and identified in the BID PROPOSAL, which is attached hereto and incorporated herein as Exhibit "A." Page I of 3 23A-37 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT NO, 17-6888 PEDESTRIAN IMPROVEMENTS ALONG SANTA ANA BOULEVARD 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. 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. 7. CONTRACTOR shall, prior to the release of the performance and payment bonds or the retention payment, furnish a warranty performance and payment bond (Warranty Bond). Said. Warranty Bond shall also be required as a condition of project acceptance. For projects up to $500,000, the Warranty Bond amount shall be the greater of $10,000 or 20% of the final contract price. For projects above $500,000, the Warranty Bond amount shall be the greater of $100,000 or 10% of the final contract price. 8. 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. Page 2 of 3 23A-38 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT NO. 17-6888 PEDESTRIAN IMPROVEMENTS ALONG SANTA ANA BOULEVARD 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 Attorney BY J -Funk Assistant City Attorney CITY OF SANTA ANA: DAVID CAVAZOS City Manager RECOMMENDED FOR APPROVAL: Fred Mousavipour Executive Director, Public Works Agency CONTRACTOR: By: Page 3 of 3 23A-39 23A-40 COST ANALYSIS CONSTRUCTION OF THE PROJECT NO. 17-6888: PEDESTRIAN IMPROVEMENTS ALONG SANTA ANA BOULEVARD Construction Contract $ 278,000.00 Contract Administration $ 18,308.00 Inspection and Testing $ 23,392.00 Contingencies $ 27,800.00 TOTAL ESTIMATED CONSTRUCTION COSTS $ 347,500.00 EXHIBIT 4 23A-41 23A-42 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: LEASE AGREEMENT WITH RIO WEST LLC FOR WESTEND SUBSTATION OFFICE {STRATEGIC PLAN NO.1, 1F} CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1®' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a month-to-month lease agreement with Rio West, LLC, for the period of November 1, 2016 to October 31, 2017, for the use of the Westend Substation, in the amount of $2,472 per month, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Police Department has operated the Westend Substation located at the corner of Harbor and McFadden for over 17 years. Because the substation location was mutually beneficial to both the property owner and the Police Department, the Police Department entered into a recurring no cost lease with the owner that has equated to a monetary savings to the City of well over $400,000. This location has become a community engagement center and is well known to area residents. Based on changing economic conditions, the property owner is no longer able to offer this space at no cost. On November 17, 2015, the City Council approved a one-year lease agreement that expired October 31, 2016. This one-year lease agreement allowed the Police Department to continue its "Community Oriented Policing" mission with area residents with no interruption of services. As the location has been in use for many years, an expensive infrastructure has already been established and an examination of relocation costs found it to be cost prohibitive to move the substation this year. This month-to-month lease agreement will extend the use of the established location while the Police Department continues to seek an alternative location for the substation. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #1 Community Safety, Objective #1 (Modernize the Community Policing philosophy to improve customer service, crime prevention 25A-1 Agreement with Rio West LLC December 20, 2016 Page 2 and traffic / pedestrian / bicycle safety), Strategy F (Enhance the Police Department's community policing philosophy to balance both traditional policing and problem solving strategies to address and reduce violent, property and gang related crimes.) FISCAL IMPACT Funds for this agreement are available in the Police Department's FY 2016-17 Equitable Sharing Treasury account (no. 16714455 62300). APPROVED AS TO FUNDS AND ACCOUNTS: Carlos Rojas Francisco Gutierrez, Chief of Police Executive Director Santa Ana Police Department Finance & Mgmt. Services Agency Exhibit 1: Agreement 25A-2 SHOPPING CENTER LEASE- GROSS 1. Basic Provisions ("Basic Provisions"). 1,I Parties: This Shopping Center Lease ("Lease"), dated for reference purposes November 1, 2016 , is made by and between Rio Vista West, LLC, a California Limited Liabilit Cot at ("Lessor") and The City of Santa Ana a municipal oorooration ("Lessee") (collectively the "Parties", or individually a "Party"). 1.2 Premises: That certain portion of the Shopping Center (as defined below), including all improvements therein or to be provided by Lessor under the terms of this Lease, commonly known by the street address of 3750 W. McFadden Avenue, Suite 1, located in the City of Santa Ana. County of Orange., State of California, with zip code 92704, as outlined on Exhibit A attached hereto ("Premises"), deemed to be approximately 989 rentable square feet of floor area. In addition to Lessee's rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive tights to use the Common Areas (as defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any rights to the roof, exterior walls or utility raceways of the building containing the Premises ("Building") or to any other buildings in the Stropping Center. The Premises and the Building are situated within the Shopping Center known as Riverview West Marketplace. The Premises, the Building, the Common Areas and all other buildings and improvements within said Shopping Center, together with the land upon which they are located, are herein collectively referred to as the "Shopping Center," (See also Paragraph 2) 1,3 Term: Month lo month ("Original Term"), commencing on November 1 2016 ("Commencement Date") and ending October 31. 2017 ("Expiration Date") unless 30 days' notice of termination is given by either party prior to the Expiration Date, (See also Paragraph 3) 1.4 �-� � _c ,,.� .at(able-Lessee— a��-ren-exsittsive--pessessio..�,€-ah�n� 1.5 Base Rent: $2 472.00 per month ("Base Rent"), payable on the first day of each month commencing on November 1, 2016. (See also Paragraph 4 and Exhibit,) There are provisions in this Lease for the Base Rent to be adiusted. See Fvhihit "t" �-! - RRSREZRti V - . v - : .. - C :. - a E �co-seetsym nre-�krr�pasg-�enter�ayy�pa�tmY-�-anY-fo} vvn-trask%oFn�, 'et}tabiortee,�ref- 6tte1Y6thet'i— ,•••.••• 1•.crbcvc6iHd8•l F«...,..r. .! is^�:i:g ��.o..,.'., .eh :.. �' a-momzai*u'-Q�izvdtk Irr-Oi �-.snr�i3a{-that-�J =v i-tnvirc�a[o� ;:=�c..1:...S::9ppilrg-6@kit@F Flt's-n.odm.� a., -aur -ire -E crteTm-Bf-tin ' �.. , r ..,,..��ihifi r@Ealetdai@-LCSSv'.�'..c........:'.eetsueh-mod}ffea$otr: a�iJ69EiiitlE3ii-Af�fi'?k7Ehtilii y� attaGl3ed�8rQier 1.9 Base Rent and Other Monies Paid Upon Execution: (a) Base Rent: $2,472.00.00 Security Deposit: $.00 ("Security Deposit"). (See also Paragraph 5) (a) Other: $ for -- (f) Total Due Upon Execution of this Lease: $2,472.00 1.10 Agreed Use: Police substation and for no other use without Lessor's prior written consent, which may be granted or withheld at Lessor's sole discretion and subject to the use restrictions attached Exhibit "H". (See also Paragraph 6) 1.11 Agreed Trade Name: Santa Ana Police Substation, (See also Paragraph 6) 1.12 Insuring Party. Lessor is the "Insuring Party". (See also Paragraph 8) 1.13 Real Estate Brokers: (See also Paragraph 15 and 25) (a) Representation: The following real estate broker (tire "Broker") and brokerage relationships exist in this transaction (check applicable boxes): X _Williams Real Estate Manaeernent file represents Lessor. 25A-3 (b) Payment to Brokers: Upon execution and delivery of this Lease by both Parties, Lessor shall pay to the Broker for the brokerage services rendered by the Broker the fee agreed to in the attaehed-separate written agreement or-lf-ne-sue"greement-is aFFaeheEl;-kbe-stnn-ef ni --�v-o fti 3e-t^"a"l-Base nc"f rhe-Or-auRffl-re,,ho snrr. et ei: °�,-o�"'-,nr: E©nal-l��sc—Pira-pt�yable-Elnthtg-an3�-period_o#-Eim� •,,�• a,., r .,�..�� pias.-,Fhe Premises,-subsequenE the-Elr-Ig:..:..1 'Foran: d-W--GFFaranter�hesh}if.�aFiens-e€�e�essee-txtclerElas-r ���� ,=aaranteed bti r��•-••^ 1.15 Attachments. Attached hereto are the following, all of which constitute a part of this Lease: N/A an addendum X a site plan marked .Exhibit A, depicting the Premises and Shopping Center; X a current set of the Sign Criteria for the Shopping Center marked Exhibit "B'; NA a work letter marked Exhibit "C; NA a Guaranty of Lease marked Exhibit "D" X a Lessee Memorandum of Lease Tenn Commencement marked Exhibit "E" _X an Estoppel Certificate marked Exhibit "F" -X_a current set of Rules and Regulations for the Shopping Center marked Exhibit "G"; X other (specify): a list of Exclusive Uses marked Exhibit "H" 2. Premises. 2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from. Lessor, the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set forth in this Lease. While the approximate square footage of the Premises may have been used in the marketing of the Promises for purposes of comparison, the Base Rent stated herein is NOT tied to square footage and is not subject to adjustment should the actual size be determined to be different. 2.2 Condition. Lessor shall deliver the Premises to Lessee in their "as -is, where -is, with edt faults and defects condition. €.�na�' d�-feeEs-I€-anotrscmrplit.��a ..,?«,...,., r, ...,, _�n , o ;�,�.... „nT,,,, r,e,rEDate, er-i€o-neofsuelr-sysEems-er-e7ementsshoedd rr alfutrcE o..�= :a �° e appropr ate dvartai� eaa or -shall as rLesser ter^ o obi gattsirwttkrrespes �su� to e opt as-otherwise-lrre�ided-in-this-I$ase,-pternptly-a#ter reser`Viten-rnetise-frerHIe�see-sse"�i.:g-ferEk svitk-spee;no<tr-tie nsEure-and extent of h n� w �;se malfttnst#errerfailct €y soma at Eesso �e pehc warranty per ods shall -boas follows>{i-}6 i�equi.�..,� espeeia^ging;-ore-appropriate-ier�.esse�'ria,.••'•nded-aas�axd-ac-kneur}eds: o- a'�.'past �;es-of--fhe-tzrenr�ises month during" emainder-c>€tbe torr ease-er-a»y-exteFrsien thereor, : ." whichtlW-Sale-Rent-is eTan_am&unt equal -te-ILl44tiref-tho-portienef noirRests reasenably-aaributablehe-balance but -may prepay its-e'�l�atioa-at-arty-tiaFe--It; hew®ve�-such Gapkal-E�FpendiEute-is-eegeired-during-Na..-lsat-��e.��-ar «r,:� r�v,,�„ P4��oe 25A-4 eeasonaliiy dete ttr nes E#at- t ist orc eeeno tr Bally feas'ble-te }xty4s- ltateof Lesser shaft -ha e Hw ept on to for n eats tit s Lease upon9n.,-d�"ys,-aerwritien-rtetice-to-besseeietiiess-Lessee-notice;,-Lesser•,-ia-wi-it#ng;-wdbhin-i9-days • ' et•®c®ipte�Lessor-'s-teriaakien noEiee tkaEbe���:i}i-pay-fet-sae�apital�p®nditu3e- EGr---:'.".t�vikirstandd""ova-tk+e-provisions-cencet�ting��+plta{�Stpsn�'�'-�rs,•r a;�,';�:.�•�;de<l�e-appi3%only-Ee--nort- E'"' ut nBt ik.. �w i e vii NhC and fire si.'«Im « c we -- 2.5 Lessee as Prior Owner/Occupant, The warranties made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary corrective work. 2.6 Vehicle Parking. Lessee shall not use and shall not permit its employees to use any parking spaces in the Shopping Center except for pinking by vehicles that are no larger than full-size passenger automobiles or pick-up trucks, herein called "Permitted Size Vehicles." Lessee shall permit its employees to only occupy those parking spaces, if any, as depicted as employee parking spaces on the Slopping Center site plan. Lessor may regulate the loading and unloading of vehicles by adopting Rules and Regulations as provided in Paragraph 2.9. No vehicles other than Permitted Size Vehicles may be parked in the Common Area without the prior written permission of Lessor. In addition: (a) Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee's employees, suppliers, shippers, contractors or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities; (b) Lessee shall not service or store any vehicles in the Common Areas; and (c) if Lessee permits or allows any of the prohibited activities described in this Paragraph 2.6, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor. 2.7 Common Areas - Definition. The term "Common Areas" is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Shopping Center and interior utility raceways and installations within the Premises that are provided and designated by the Lessor from time to time for the general non-exclusive use of Lessor, Lessee and other Lessees of the Shopping Center and their respective employees, suppliers, slippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas. 2.8 Common Areas - Lessee's Rights. Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers, shippers, contractors, customers and invitees, during the tern of this Lease, the noir-exclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor tinder the terms hereof or under the terms of any riles and regulations or restrictions governing the use of the Shopping Center. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas, nor to display merchandise or conduct sales in the Common Areas. Any such storage, display or sales shall be permitted only by the prior written consent of Lessor or Lessor's designated agent, as exercised in Lessor's sole discretion, which consent may be revoked at any time. In the event that any unauthorized storage or displays shall occur then lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor. 2.9 Common Areas - Rules and Regulations. Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations ("Rules and Regulations") for the management, safety, care, and cleanliness of the grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or Lessees of the Building and the Shopping Center and their invitees, Lessee agrees to abide by and conform to all such Rules and Regulations, and shall use its best efforts to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the non-compliance with said Rules and Regulations by other Lessees of the Shopping Center. 25A-5 210 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time: (a) To make changes or additions to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, elevations, landscaped areas, signage, walkways and utility raceways; (b) To use and close temporarily any of the Common Areas for the purpose of maintaining, repairing and altering the Shopping Center, so long as reasonable access to the Premises remains available, and to close temporarily any of the Common Areas to whatever extent is required in the opinion of Lessor's counsel to prevent a dedication of or the accrual of any rights of any persons or of the public to any of the Common Areas; (c) To designate other land outside the boundaries of the Shopping Center to be a part of the Common Areas or to be entitled to use the Cormnon Areas on a reciprocal basis; (d) To add additional buildings and improvements to the Common Areas; and (e) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas arid Shopping Center as Lessor may, in the exercise of sound business judgment, deem to be appropriate. 2.11 Common Areas - Promotional Events; Sidewalk Sales, Lessor reserves the right, from time to time, in Lessor's sole discretion, to utilize portions of the Common ,Areas for promotional events, which may include, but shall not be limited to, entertainment. Lessor further reserves the right, in Lessor's sole discretion, to permit any one or more Lessees of the Shopping Center to conduct the display and/or sale of merchandise from the sidewalks immediately adjacent to such Lessees' respective premises. 2.12 Common Areas - Remodeling. At any time during the Term, Lessor may remodel or expand, in any manner, the existing Shopping Center, which work may include, without limitation, the addition of shops and/or new buildings to the Shopping Center (collectively, "Remodeled Center"), If Lessor deems it necessary for construction personnel to enter the Premises in order to construct the Remodeled Center, Lessor shall give Lessee no less than 30 days prior notice and Lessee shall allow such entry. Lessor shall use reasonable efforts to complete any work affecting the Premises in an efficient mailer so as not to interfere unreasonably with Lessee's business. Lessee shall not be entitled to any damages for any inconvenience or any disruption to Lessee's business caused by such work; provided, however, the Base Rent paid by Lessee for the period of the inconvenience shall be abated in proportion to the degree that Lessee's use of the Premises is impaired as reasonably determined by Lessor. 3. Term. 3.1 Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3. 3.2D,",�1 ossessieFr. Aay-previsieet-here+n-grantit�.; T-- ^•.ee-Early-P-ossessieitef-Nim tip, -ria,•^ ;-in-subieetiaand-eendi#ioned ror-pt+rl�oses-l:.er�o - „s ,paney"•,,-;�� ;.tae; svithe, :•.;i' :,•nom I�ssc nut-$.emises-fer-t>tx'peses et proi.>ariag-and fF7EtliE Trv-r?rivmi-n� E-bli3.l iztng-tl'., .b Rent and-;'er�atage-ReritskaN-be-abated-fertlte-pa-..w- a"ue. early pessess m--411- hof -terms-4-this-I ease4hialtdin s R y. a ..^ . g but net rim ted to bar r . s # ns as arid- s.-�.r in4he �a=is�`�-:;k>Tll-be-in-ef£a^,�' ,_:„g_�,,-u�--��-led-e:�cepE that-Lessee's-obligation�pa�Basee's-Sham-o€£eramen-Area�lseg £>Fpatuses;�-a�-�-=�,.,,—moi •usurancc-o-pre+rt}ums-oho fHP-1)kY.i1nE{iv-isna.�""� Pr;,:M •••. � Ft n,,.«« �iSeineEll�-liftT M1 1 T• i b t, 19 �Y—i'ciR�-lriivilCSS^!8>3- 4 C3'.r-ate :v u„� c aamxc[vinii�c,~,......• �a., .v-de�li�yfGC--p01,• C ,..:.,« Il.,... �llte"P'ren2}i1Q$-te Les.y I,,.,, n, rr._-dc.,pne-said-e'foretr5et-is-enable-te-del>•ver-ges.,�., .,.. , ,..... -eat ax�osse®-t-Fpessessle}r-tsts<�t-a®nver€s-rovrtntn�iH-days-a.Etsr-#heCommexsemenP-Bat., u•• ••� '.� � ^a�a-a,�,.z;,oz�,.,,,.,.o — day -- et- relive— per od Lees s+�gl to-san ....a ... Imo' nn ess ootro€E.. red-Wi#litre ,�a'r"��tlka-are+ntneueeoterit-Bate;-Elms-lea9e-sshhailaut�ra,at:eall3=ter-�a4na#e-mr�s�other-agr-eemetu:;-afe-reached-be::..,,�' .�;•pr and-L„-Ana-svr�ting: 3.4 Lessee Compliance. Lessor shall not be required to tender possession of the Premises to Lessee until Lessee complies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be required to perform all of its obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor's election to withhold possession pending receipt of such evidence of insurance. 25A-6 4. Rent. 4.1 Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent ("Rent"), 41 h@x@iH}rfterde€kHedre4H+i}�k,�sksa{=.,•'�,,.Tw�„,•rt}teter-m-ofl4ris-lrease;i}}ac-eordaHse-sYit}�-Ehe-fellc�av}�g-pr�ui�ee� (a) "Eunaxuttrir$n 9Ner tt"s@s aced@ tid,� th s Lease as all aosts iHSHd1 y b@s oe 1 @i3f1}}g'E8-Ni@-QYdH@@p91?ij3-, 9p@Fa'c.::r,-a arMg@kHeHt,,+epaii- and -i@piaG@H}@HFO [die-vhOppHig-Ctii3ivz"; iH6iHfik}b.*q-bkkEii(it-}tiH3tf:d-tB�-Yll@ Wowiing- ♦��,��,� mak) �h¢BperB}FBfl� rdpH}EaHd-H}FFkHtG-'HflnE@-H7-AEaf-6�l'a ra.,�..«"61., ..^^....,....... _rn.., r_r. _._•__..- ..� .. - _. o d-89Hd}tiEHi� 3Hd-P..f.m=.�-:._.�-:.moo 8@pat�At@I•y-H32ECC@d- . "..�' �•�.�„"a7-`�E`-,@p}}gH8-k2-&BFvtEt ihC-C-Bti:a ^« ”.vary-�rccm"""-xn';fraity-ttft}iil@S-Ht�4 —--�tii�--��i@-EEk;E-Bf-tP1.9I}-di9p9SRI; -j.v <�......�: 8@Wte85S-pt'e�g^•••,ter-� "H6i4}fE}�SeI:YY}E@8'S-aHd-{h® 9+6&t:�@E}Y}gBITEn@gliFl-iH9p@@t19kY,r Ofl-rBFrii'k tvuv:.-r.-icry@!fSOt-RStd2-f6Pt'E1kt11jH7EHt� mutmeHv4n8@g-rL'p�1" �....... ��:,.-..:..QH Y'�I: -- �Yi; •r�'@-095E-6f-the-�r@a4f.nar "'m®-ifc5Hf3H28-Hk"ti}}Ix1iH@ ��� � ��� HE-t� n^..",.«"«t, o —i'�-Aflyd0dulc:Ell�k r^ c eco +zing-Ehd •6-If�rtlli .h^ �.,, �P (�+ii) A diE9rs aes9nHEnittst}d n^,^ «",,^ r" . - is eeiated Ge Eh@ ep�k:6ieHet Eh@ Sh -..e.=in II.R-.gym;,, narerc�spes}xe-a}ty-attrt9Htao. va,. a i:.mise the-14u}ldn to -a, die',1. l,,i"4 'i--^^•-....i.r_.b v. w file-9p�r 'gpd}k-Ril�-H9a33i{@Ha[�:h: r.,l}fl}(--�_ n1n-m?oo6aa-.. 1 n 1 �� � pr@HilS95-9 :Tj9"..^ '"'" ""^ "«'' p ety-banes-Eh3E-Hr�HeE-spew... �,..rihtetable-te-aRy-pteHlises-9r b Comer- � 9 9 Eh@ ep9raE eH�epa+t' � a m @ aHe� El er@e�shalflre�crkfably a}lesa eel by Lesser to all bu'}�� tHg � alrea�=�•n,,c-eaHte; Less9r-a1�@ad�e-s€rYiee�9pT�..� « 1i,... ^^_ a , � 1.'" T c"", . (d)—Le •e@e-s-E.har e�E �Hts}rt1•r@a-Opetafin6'-��@Hses-n�9H!r,,;��;.- ..». i,,,,..,.,«ao.. rr...._.,......_c_--'._------ „. _ ••@-daj�'ks-Eke-IIaS@-R6HE-ie-dtt9 "Mae ,T,1,._..o�..., {+HH%{q�-�.gS9�iaC'Iv, ... oiF.G-.lYtaii-�rzi'y'[ � L."........ a uwvacnC'tJt-[tlCYIILY-1F.iv'•'^[rv�-�rv'�zi'.�'dii'-i�t� CYC'ttt'°:v H-. T ^ � N T ... _ p .--@ .moi* `.a�ct"a�c"'r«it:rrE (a) - ]f tier@ ar€ ane or }late ^ fe w,-( T °E9r d�rne�j sv#th }t tk@ 5heppi ig GeHfe tkeH aE-f @sse s sale aE lea5E3;089-sc}uare-feat o€tetlEabl^.n,rca�;.',.:.,•R�l�e.,1 ppiHg-C-eHteF 25A-7 4.3 Payment. Lessee shall cause payment of Rent to be received by Lessor in lawfld money of the United States, without offset or deduction (except as specifically permitted in this Lease), on or before the day on which it is due. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the tern hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so stating. In the event that any check, draft, or other Instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25.00 in addition to any Late Charge and Lessor, at its option, may require all future Rent be 'pard by cashier's check. Payments will be applied first to accrued late charges and attorney's fees, second to accred interest, then to Base Rent and Common Area Operating Expenses, and any remaining amount to any other outstanding charges or costs. 5. Seeartt3 Aepesit. .,e �" depes t w th I e se upon eteeutieu lte eof4he�esurity l3epos to seetrrtty f° i6hful perforinanse eF is ebl gaE ons under H3rn ; Lite p y Ren e"' .is® d�efau}ts e nder-thtsLtaso Lesser n a�a tnsr®ases-during-ths-refm-o€this-']:ease;-LesseEvsltall-upon-a:.;ttn,-requ0st-frenrLdepesit-add.'-._..:_...._!. _,..,.,..,,, ..".,.. tlt��o�''�tuxt of-the-Sesurdty�epesit-shdll-aEaN-tiniesbear-the-sameyxapertien-te-tl�-ixsreasecl-Basetas-die-irrttia�Se<suttty DeposiE-bore n the nitinl R .... Slsot{d Ghe l gr€ed i3se be a trended to aeeommoda.e� r ' ' at ,� - „m a ".'-ass of L -ease® 'ttiat'peFtFEI::'•�vrirac••• Cvc'enri'ty�ep(j$rt-nC')t-nS@d�6T 1+. i 1�1 F 1 C ',J,.«e 14�.. 1��k..t�r• `appli@d-o}-.�v�sorr..(§-fHhl{ w�vcr.�y�BpoStt-Si3all�Cv6n"�.,-r •• trir"k ter -bear -interest -orfs be prepaytuenrfex ouy-manias-to-be-paid-lay-I�ssee-uxdet-this-Lease: 6. Use. 6.1 (a) Agreed Use; Agreed Trade Name. Lessee shall use and occupy the Premises only for the Agreed Use, and for no other use or purpose without Lessor's prior written consent, and Lessee shall operate at the Premises only tinder the Agreed Trade Name and under no other trade name without Lessor's prior written consent. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to neighboring premises or properties. Other than guide, signal and seeing -eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, or to the Agreed Trade Name. If Lessor elects to withhold consent, Lessor shall within 14 days alder such request give written notification of same, which notice shall include an explanation of Lessor's objections to due change in the Agreed Use and/or Agreed Tracie Name. (b) Continuous Operation. Lessee shall continuously (i) operate and conduct the Agreed Use under the Agreed Trade Name within the entire Premises in a reputable manner and in conformity with industry standards of practice nrevailine in the i at a n font 3 u :;-, r)-,ro0-a,-trt�e,6,09_p m and Sttnc4ayLronr 19 80a.m. to 6 -00 p -m- (c) Violations of Exclusive Use 'Rights. Lessee acknowledges that Lessor may grant, or may have previously granted, exclusive use rights to other Lessees of the Shopping Center and agrees that a material consideration to Lessor in entering into this Lease is Lessee's covenant to limit its use of the Premises to the Agreed Use under the Agreed Trade Name as set forth above. Lessee's violation of exclusive use rights granted to other Lessees of the Shopping Center will result in Lessor suffering irreparable harm and, therefore, in addition to all other rights and remedies available to Lessor, Lessor may seek to enjoin Lessee's breach of such covenant and Lessee shall be liable for any damages incurred or sustained by Lessor to such other Lessees whose exclusive use rights are breached by Lessee. in no event shall Lessor be liable to Lessee for any failure of any other Lessees of the Shopping Center to operate their businesses, or for any loss or damage that may be occasioned by or through the acts or omissions of other Lessees or third parties. (d) Other Tenancies. Lessor reserves the absolute right to establish procedures to control other tenancies in the Shopping Center. Regardless of whether any specific Lessees are shown on any site plan attached hereto, Lessee does not rely on that fact, nor does Lessor represent that any specific Lessee or number or type of Lessees shall or shall not during the Term occupy any portion of the Shopping Center, nor does Lessee rely on any other Lessee operating its business in the Shopping Center at any particular time or times. Further, no conduct by any Lessee, Sublessee or other occupant of, or any customer of, or any supplier to or use of any 25A-8 portion of the Shopping Center shall constitute an eviction, constructive or otherwise, of Lessee from the Premises, and Lessee hereby waives any and all claims that it might otherwise have against Lessor by reason thereof. 6.2 Hazardous Substances. (a) Reportable Uses Require Consent. The term "Hazardous Substance" as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment or the Premises, (it) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of Lessor to any governmental agency or third party under any applicable statue or common law theory. Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and/or nude oil or any products, by-products or fractions thereof, Lessee shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the express prior written consent of Lessor and timely compliance (at Lessee's expense) with all Applicable Requirements. "Reportable Use" shall mean (1) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in die normal course of the Agreed Use, ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit. (b) Duty to Inform Lessor, If Lessee knows, or has reasonable cause to believe, that a Hazardous Subsumce has come to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous Substance. (c) Lessee Remediation. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or about the Premises (including through the plumbing or sanitary sewer system) and shalt promptly, at Lessee's expense, comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during the tern of this Lease, by or for Lessee, or any third party. (d) Lessee Indemnification. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties, and attorneys' and consultants' fees arising out of or involving any IIazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from areas outside of the Shopping Center not caused or contributed to by Lessee). Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and Lessee shall release Lessee from its obligations under this Lease with respect to IIazardous Substances, unless specifically so agreed by Lessor in writing at the time of such agreement. (e) Lessor Indemnification. Except as otherwise provided in paragraph 8.7, Lessor and its successors and assigns shall indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages, including the cost of remediation, which are suffered as a direct result of Hazardous Substances on the Premises prior to Lessee taking possession or which are caused by the gross negligence or willful misconduct of Lessor, its agents or employees. Lessor's obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. (t) Investigations and Remediation. Lessor shall retain the responsibility and pay for any investigations or remediation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to Lessee taking possession, unless such remediation measure is required as a result of Lessee's use of the Premises (including "Alterations", as defined in paragraph 7.3(a) below), in which event Lessee shall be responsible for such payment. Lessee shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessor's agents to have reasonable access to the Premises at reasonable times in order to carry out Lessor's investigative and remedial responsibilities. (g) Lessor Termination Option. If a IIazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the investigation and remediation thereof" 25A-9 required by the Applicable Requirements and this Lease shallcontinue in fill force and effect, but subject to Lessor's rights under Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor's option, either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue to full force and effect, or (ii) if the estimated cost to remediate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever is greater, give written notice to Lessee, within 30 days afterreeeipt by Lessor of knowledge of the occurrence of such Hazardous Substance Condition, of Lessors desire to terminate this Lease as of the date 60 days following the date of such notice. In the event Lessor elects to give a termination notice, Lessee may, within 10 days thereafter, give written notice to Lessor of Lessee's commitment to pay the amount by which the cost of the remediation of such Hazardous Substance Condition exceeds an amount equal to 12 times the then monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days following such commitment. In such event, this Lease shall continue in full force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available. If Lessee does not give such notice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the date specified in Lessor's notice of termination. 6.3 Lessee's Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, fully, diligently and in a timely manner, comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Lessor's engineers and/or consultants which relate in any manner to such Requirements, without regard to whether said Requirements are now in effect or become effective after the Start Date. Lessee shall, within 10 days after receipt of Lessor's written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give written notice to Lessor of: (i) any water damage to the Premises and any suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (if) any mustiness or other odors that might indicate the presence of mold in the Premises. 6.4 Inspection; Compliance. Lessor and Lessor's "Lender" (as defined in Paragraph 29) and consultants shall have the right to enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable notice, for the purpose of inspecting the condition of the Premises and for verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition (see Paragraph 9.1) is found to exist or be imminent. In such case, Lessee shall upon request reimburse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the violation or contamination. In addition, Lessee shall provide copies of all relevant material safety data sheets (MSDS) to Lessor within 10 days of the receipt of written request therefor, 7. Maintenance; Repairs, Utility Installations; Trade Fixtures and. Alterations. 7.1 Lessee's Obligations. (a) In General. Subject to the provisions of Paragraph 2.2 (Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable Requirements), 7,2 (Lessor's Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at Lessee's sole expense, keep the Premises, Utility Installations (intended for Lessee's exclusive use, no matter where located), and Alterations in good order, condition and repair (whether or not the portion of the Premises requiring repairs, or the means of repairing the same, are reasonably or readily accessible to Lessee, and whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises), including, but not limited to, all equipment or facilities, such as plumbing, HVAC equipment, electrical, lighting facilities, boilers, pressure vessels, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, and skylights but excluding any items which are the responsibility of Lessor pursuant to Paragraph 7.2. Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices, specifically including the procurement and maintenance of [tie service contracts required by Paragraph 7.1(b) below. Lessee's obligations shalt include restorations, replacements or renewals when necessary to ]seep the Premises and all improvements thereon or a part thereof in good order, condition and state of repair. (b) Service Contracts. Lessee shall, at Lessee's sole expense, procure and maintain contracts, with copies to Lessor, in customary form and substance for, and with contractors specializing and experienced in the maintenance of the following equipment and improvements, if any, if and when installed on the Premises: (i) HVAC equipment, (ii) boiler and pressure vessels, and (iii) clarifiers and grease interceptors. Lessor reserves the right, upon notice to Lessee, to procure and maintain any or all of such service contracts, and Lessee shall reimburse Lessor, upon demand, for the cost thereof. (c) Failure to Perfonm. If Lessee fails to perform Lessee's obligations under this Paragraph 7. 1, Lessor may enter upon the Premises after 10 days' prior written notice to Lessee (except ill the case of an emergency, in which rase no notice shall be required), perform such obligations on Lessee's behalf, and put the Premises in good order, condition and repair, and Lessee shall promptly pay to Lessor a sum equal to the cost thereof, (d) Replacement. Subject to Lessee's indemnification of Lessor as set forth in Paragraph 8.7 below, and without relieving Lessee of liability resulting from Lessce's failure to exercise and perform good maintenance practices, if an item described in 25A-10 Paragraph 7.1(b) cannot be repaired other than at a cost which is in excess of 50% of the cost of replacing such item, then such item may be replaced by Lessor, and the cost thereof shall be prorated between the Parties and Lessee shall only be obligated to pay, each month during the remainder of the termof this Lease, on the date on which Base Rent is due, an amount equal to the product of multiplying the cost of such replacement ley a fraction, the numerator of which is one, and the denominator of which is 144 (Le. 1/144th of the cost per month). Lessee shall pay Interest on the mmamortized balance but may prepay its obligation at any time 7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9 (Damage or Destruction) and 14 (Condemnation), and --subjeet—to e tnk+trsemettptusnanE to Raragrap T• , Lessor shall keep in good order, condition and repair the foundations, exterior walls, structural condition of interior hearing walls, exterior roof, fire sprinkler system, Common Area fire alarm and/or stroke detection systems, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences, signs and utility systems serving the Common Areas and all parts thereof, as well as prsvid ng.tho3etieesfes w4h thero-is a n o 4reagp®rat:^Expoiiso pursuar 'b^. Lessor shall not be obligated to paint the interior surfaces of exterior walls nor shall Lessor be obligated to maintain, repair or replace windows, doors or plate glass of the Premises all of which shall be performed by Lessee at Lessee's sole expense. Lessee expressly waives the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease. 7.3 Utility Installations; Trade Fixtures; Alterations. (a) Definitions. The term "Utility Installations" refers to all floor and window coverings, air and/or vacuum lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, plumbing, and fencing in or on the Premises. The term "Trade Fixtures" shall mean Lessee's machinery and equipment that can be removed without doing material damage to the Promises. The term "Alterations" shall mean any modification of the improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletion. "Lessee Owned Alterations and/or Utility Installations" are defined as Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor pursuant to Paragraph 7.4(a). (b) Consent. Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor's prior written consent. Lessee may, however, make non-structural Alterations and Utility Installations to the interior of the Premises (excluding the roof) without such consent but upon notice to Lessor, as long as they are not visible from the outside, do not involve puncturing, relocating or removing the roof or any existing walls, will not affect the electrical, plumbing, HVAC, and/or life safety systems, and the cumulative cost thereof during this Lease as extended does not exceed a sum equal to 3 month's Base Rent in the aggregate or a sum equal to one month's Base Rent in any one year. Notwithstanding the foregoing, Lessee shall not make or permit any roof penetrations and/or install anything on the roof without the prior written approval of Lessor. Lessor may, as a precondition to granting such approval, require Lessee to utilize a contractor chosen and/or approved by Lessor. Any Alterations or Utility Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed conditioned upon Lessee's: (I) acquiring all applicable governmental permits, (ii) furnishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, and (iii) compliance with all conditions of said permits and other Applicable Requirements in a prompt and expeditious manner. Any Alterations or Utility Installations shall be performed in a workmanlike manner with good and sufficient materials. Lessee shall promptly upon completion furnish Lessor with as-built plans and specifications. For work which costs an amount in excess of one month's Base Rent, Lessor may condition its consent upon Lessee providing a lien and completion bond in an amount equal to 150% of the estimated cost of such Alteration or Utility Installation and/or upon Lessee's posting an additional Security Deposit with Lessor. (c) Liens; Bonds. Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any mechanic's or materialman's lien against the Premises or any interest therein. Lessee shall give Lessor not less than 10 days' notice prior to the commencement of any work in, on or about the Premises, and Lessor shall have the right to post notices of non-responsibility. If Lessee shall contest the validity of any such lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shalt furnish a surety bond in an amount equal to 150% of the amount of such contested lien,, claim or demand, indemnifying Lessor against liability for the same. If Lessor elects to participate in any such action, Lessee shall pay Lessor's attorneys' fees and costs. 7.4 Ownership; Removal; Surrender; and Restoration. (a) Ownership. Subject to Lessor's right to require removal or elect ownership as hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of Lessee, but considered a part of the Premises. Lessor may, at any time, elect in writing to be the owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless otherwise instructed per Paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at the expiration or termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises. (b) Removal. By delivery to Lessee of written notice from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned Alterations or Utility Installations be removed by the expiration or termination of this Lease. Lessor may require the removal at any time of all or any part of any Lessee Owned Alterations or Utility Installations made without the required consent. 25A-11 (c) Surrender; Restoration. Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, with all of the improvements, parts and surfaces thereof brown clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tear excepted. "Ordinary wear and tear" shall not include any damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the foregoing, if this Lease is for 12 months or less, then Lessee shall surrender the Premises in the sante condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee Owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall also completely remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the Premises), even if such removal would require Lessee to perform or pay for work that exceeds statutory requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personalproperty of Lessee not removed on or before the Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a holdover under the provisions of 26 below. 8. Insurance; Indemnity. 8.1 Payment of Premiums. The cost of the premiums for the insurance policies required to be carried by Lessor, pursuant to Paragraphs 8,2(b), 8.3(a) and 8.3(b), shall be a Common Area Operating Expense. hrOm un g pa Ey peg ods sones or to e exksnd ng boyond t ry hs Less® shaA�e prerated-tie ceineki u' � - o ponding -$Fart mate c; ! - Effl-Ante-Or evidence of self insured retention in the same amount. 8.2 Liability Insurance, (a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Lessee shall add Lessor as an additional insured by means of an endorsement at least as broad as the insurance Service Organization's "Additional Insured -Managers or Lessors of Premises" Endorsement. The policy shall not contain any intra -insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an "insured contract" for the performance of Lessee's indemnity obligations under this Lease. The limits of said insurance shall not limit the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shall provide, an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only. (b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8,2(a), in addition to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein. 8.3 Property Insurance - Building, Improvements and Rental Value. (a) Building and Improvements. Lessor shall obtain and keep in force a policy or policies of insurance in the name of Lessor, with loss payable to Lessor, any ground -lessor, and to any Lender insuring loss or damage to the Promises. The amount of such insurance shall be equal to the full insurable replacement cost of the Premises, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee's personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except die perils of flood and/or earthquake unless required by a Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S, Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. (b) Rental Value. Lessor shall also obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an additional 180 days ("Rental Value Insurance"). Said insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted ammally to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period. (c) Adjacent Premises. Lessee shall pay for any increase in the premiums for the property insurance of the Building and for the Common Areas or other buildings in the Shopping Center if said increase is caused by Lessee's aots, omissions, wo-er-oceupatic-y of4he-Rremises: IO 25A-12 8.4 Lessee's Property; Business Interruption Insurance; Worker's Compensation insurance. (a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned Alterations and Utility Installations. Such insurance shall be full replacement cost coverage with a deductible of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for die replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations. by -prudent -lessees in the basince or atEr �}table to }xeveut cin cam; t9 �:.:isos asa result of suslreer+ls requrree-i'>'-rxragr-apa-x-o: (d) No Representation of Adequate Coverage. Lessor makes no representation that the limits or fours of coverage of insurance specified herein are adequate to cover Lessee's property, business operations or obligations tinder this Lease. 8.5 Insurance Policies, Insurance required herein shall be by companies maintaining during the policy term a "General Policyholders Rating" of at least A- VII, as set forth in the most current issue of "Best's Insurance Guide", or such other rating as may be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor certified copies of policies of such insurance or certificates with copies of the required endorsements evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to modification except after 30 days prior written notice to Lessor. Lessee shall, at least 10 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or 'insurance binders" evidencing renewal thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. if either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same. 8.6 Waiver of Subrogation. Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of or incident to the perils required to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby. 8.7 Indemnity. Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor's master or ground lessor, property manager, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys' and consultants' fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified. 8.8 Exemption of Lessor and its Agents from Liability. Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee's employees, contractors, invitees, customers, or ally other person in or about tine Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, 'indoor air quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon other portions of the building of which the Premises are a part, or from other sources or places, (ii) any damages arising from any act or neglect of any other Lessee of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Shopping Center, or (iii) injury to Lessee's business or for any loss of income or profit therefrom. Instead, it is intended that Lessee's sole recourse in the event of such damages or injury be to File a claim on the insurance policy(ics) that Lessee is required to maintain pursuant to the provisions of Paragraph 8, 9. Damage or Destruction, 9.1 Definitions. (a) "Premises Partial Damage" shall mean damage or destruction to the improvements oil the Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 6 months or less front the date of the damage or destruction, and the cost thereof does not exceed a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total, (b) "Premises Total Destruction" shall mean damage or destruction to the improvement's on the Premises, other than Lessee Owned Alterations and Utility Installations and 'Trade Fixtures, which cannot reasonably be repaired in 6 25A-13 months or less from the date of the damage or destruction and/or the cost thereof exceeds a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 clays from the date of the damage or destruction as to whether or not the damage is Partial or Total. (c) "Insured Loss" shall mean damage or destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the insurance described in Paragraph 8.3(a), irrespective of any deductible amounts or coverage limits involved. (d) "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of Applicable Requirements, and without deduction for depreciation. (C) "hazardous Substance Condition" shall mean the occurrence or discovery of a condition involving the presence of or a contamination by, a hazardous Substance, in, on, or tinder the Premises or Common Areas which requires restoration. 92 Partial Damage - Insured Loss. If a Premises Partial Damage that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon as reasonably possible and this Lease shall continue in full force and effect. Notwithstanding the foregoing, if the required insurance was not in force or the insurance proceeds are not sufficient to affect such repair, the Insuring Party shall promptly contribute the shortage in proceeds as and when required to complete said repairs. In the event, however, such shortage was due to the fact that, by reason of the unique nature of the improvements, frill Replacement Cost insurance coverage was not commercially reasonable and available, Lessor shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Lessee provides Lessor with the funds to cover same, or adequate assurance thereof, within 10 days following receipt of written notice of such shortage and request therefor. If Lessor receives said funds or adequate assurance thereof within said 10 day period, Ute party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect. If such funds or assurance are not received, Lessor may nevertheless elect by written notice to Lessee within 10 days thereafter to: (i) make such restoration and repair as is commercially reasonable with Lessor paying any shortage in proceeds, in which case this Lease shall remain in full force and effect, or (ii) have this Lease terminate 30 days thereafter. Lessee shall not be entitled to reimbursement of any funds contributed by Lessee to repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either Party. 9.3 Partial Damage - Uninsured Loss. If a Premises Partial Damage that is not an Insured Loss occurs, unless caused by a grossly negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense), Lessor may either. (i) repair such damage as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue in full force slid effect, or (ii) tenninate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to temutiate this Lease, Lessee shall have the right within 10 days after receipt of the termination notice to give written notice to Lessor of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with said fluids or satisfactory assurance thereof within 30 days after making such commitment. In such event this Lease shall continue in Rill force and effect, and Lessor shall proceed to make such repairs as soon as reasonably possible after the required funds are made available to Lessor. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice. 9.4 Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction. If the damage or destruction was caused by the gross negligence or willful misconduct of lessee, Lessor shall have the right to recover Lessor's damages from Lessee, except as provided in Paragraph 8.6. 9.5 Damage Near End of Term. If at any time during the last 12 months of this Lease there is damage for which the cost to repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective as of the date of occurrence of such damage by giving a written termination notice to Lessee within 90 days after the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee at that time has an exercisable option to extend this Lease and the damage is an Insured Loss, then Lessee may preserve this Lease by, (a) exercising such option and (b) providing Lessor with any shortage in insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the earlier of (i) the date which is 10 days after Lessee's receipt of Lessor's written notice purporting to terminate this Lease, or (ii) the day prior to the date upon which such option expires. If Lessee duly exercises such option during such period and provides Lessor with funds (or adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor's commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall continue in fall force and effect. If Lessee faits to exercise such option and provide such funds or assurance during such period, or if the damage is not an Insured Loss, then this Lease shall terminate on the date specified in the termination notice and Lessee's option shall be extinguished. 9.6 Damage to Shopping Center. In the event of any damage or destruction to other portions of the Building or to any other buildings in the Shopping Center, whether insured or uninsured (and whether or not there is also damage or destruction to the Premises), which cannot reasonably be repaired in 12 months or less from the date of the damage or destruction, Lessor may either (i) repair such damage or destruction as soon as reasonably possible without expense to Lessee, in which event this Lease shall continue in 12 25A-14 full force and effect, or (ii) terminate this Lease by giving written notice to Lessee within 90 days after receipt by Lessor of knowledge of the occurrence of such damage or destruction. Such termination shall be effective 60 days following the date of such notice. 9.7 Abatement of Rent; Lessee's Remedies. (a) Abatement, hr the event of Premises Partial Damage or Premises Total Destruction or a hazardous Substance Condition for which Lessee is not responsible under this Lease, the Base Rent payable by Lessee 1'or the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Lessee's use of the Premises is impaired, but not to exceed the proceeds actually received by Lessor from the Rental Value Insurance. All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation, repair or restoration except as provided herein. (b) Termination; Advance Payments. Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, rerun to Lessee so much of Lessees Security Deposit as has not been, or is not then required to be, used by Lessor. 10, Real Property Taxes. 10.1 Definition, As used herein, the term "Re=d Property Taxes" shall include any form of assessment; real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Shopping Center, Lessor's right to other income therefrom, and/or Lessor's business of leasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Shopping Center address and where the proceeds so generated are to be applied by the city, county or other local taxing authority of a jurisdiction within which the Shopping Center is located. The tern "Real Property Taxes" shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Shopping Center, (ii) a change in the improvements thereon, and/or (iii) levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease. In calculating Real Property Taxes for any calendar year, the Real Property Taxes for any real estate tax year shall be included in the calculation of Real Property Taxes for such calendar year based upon the number of days which such calendar year and tax year have in common. 10.2 Payment of Taxes. Except as otherwise provided in Paragraph 10.3, Lessor shalt pay the Real Property Taxes applicable to the Shopping Center, and-saaid-}payments-shall-be4nslude n is a ensea�ht eeeeedanee-wttlrtho-p.n ,,, ,.b:;,Y,a . . 10.3 Additional Improvements, Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at the time �°�petitt6 €spenses a'e payukle u l' r� •� r the entirety of any increase in Real Property Taxes if assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Lessee or at Lessee's request, or by reason of any alterations or improvements to the Premises made by Lessor subsequent to the execution of this Lease by the Parties. 10.4 Joint -Asses t+ L a •t,n.,.. t n ,.peY{.y�{�r...e,« «_ .u,^ n;.:t.i:.... t ..n b ftn-equ�tabla prepertten-eftTM� nrepert� Ta,�f.,. , t; .,° 1 ��and-and-improvements-insludediuitlrin-the-ta�pareel-a:,sessed,sufth 10.5 Personal Property Taxes. Lessee shall pay prior to delinquency all taxes assessed against and levied upon Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee contained in the Premises. When possible, Lessee shall effuse its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee's said property shall be assessed with Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee's property within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee's property. 11. Utilities and Services. Lessee shall pay for all water, gas, heat, light, power, telephone, tri and other utilities and services supplied to the Premises, together with any taxes thereon. Te-theextem a ^h 1+ , ., Mme net separately ..were to-«7ess..C•`. .ro-oh.".ro .L..,,.o ..: t n r, n wr a ,a• sftall-pa3`Lessc;�' . thereapit: accc:..n„�-a„rbT�r,,«,,,,,�mg-the-prev#siens-of-Faeagraplr4?; if at any time in Lessor's sole judgment, Lessor detenmines that Lessee is using a disproportionate amount of water, electricity or other commonly metered utilities, or that Lessee is generating such a large volume of trash as to require an increase in the size of the trash receptacle and/or an increase in the number of times per month that it is emptied, then Lessor may increase Lessee's Base Rent by an amount equal to such increased costs. There shall be no abatement of Rent and Lessor shall not be liable in any respect whatsoever for the inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute, breakdown, accident, repair or other cause beyond Lessor's reasonable control or in cooperation with governmental request or directions. W 25A-15 12. Assignment and Subletting. 12.1 Lessor's Consent Required. (a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, "assign or assignment"), license or sublet all or any part of Lessee's interest in this Lease or in the Premises without Lessor's prior written consent. (b) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, a change in the control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 25% or more of the voting control of Lessee shall constitute a change in control for this purpose. (c) The involvement of Lessee or its assets in any transaction, or series of transactions by way of merger, sale, acquisition, financing, transfer, leveraged buy-out or otherwise, which results or will result in a reduction of the Net Worth of Lessee by an amount greater than 25% of such Not Worth as it was represented at the time of the execution of this Lease or at the time of the most recent assignment to which Lessor has consented, or as it exists immediately prior to said transaction or transactions constituting such reduction, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its consent. "Net Worth of Lessee" shall mean the net worth of Lessee (including any guarantors) established under generally accepted accounting principles. (d) Anassignment or subletting without consent shall, at Lessor's option, be a Default curable after notice per Paragraph 13.1(c), or a non -curable Breach without the necessity of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting as a non -curable Breach, Lessor may either: (i) terminate this Lease, or (ii) upon 30 days written notice, increase the monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event of such Breach and rental adjustment, all fixed and non -fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of the scheduled adjusted rent. (e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injunctive relief. (I) Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at the time consent is requested. (g) Notwithstanding the foregoing, allowing a de minimis portion of the Premises, i.e. 20 square feet or less, to be used by a third party vendor in connection with the installation of a vending machine or payphone shall not constitute a subletting. 12.2 Terms and Conditions Applicable to Assignment and Subletting. (a) Regardless of Lessor's consent, no assignment or subletting shall: (i) be effective without the express written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of any obligations hereunder, or (iii) alter the liability of Lessee for the payment of Rent or for (lie performance of any other obligations to be performed by Lessee. (b) Lessor may accept Rent or performance of Lessee's obligations from any person other than Lessee pending approval or disapproval of an assigmnent. Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall constitute a waiver or estoppel of Lessor's right to exercise its remedies for Lessee's Default or Breach. (c) Lessor's consent to any assignment or subletting shall not constitute a consent to any subsequent assignment or subletting. (d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee's obligations under this Lease, including any assignee or sublessee, without first exhausting Lessor's remedies against any other person or entity responsible therefore to Lessor, or any security held by Lessor, (e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Lessor's determination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Premises, if any, together with a fee of $1,000.00 as consideration for Lessor's considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and/or documentation as may be reasonably requested. (See also Paragraph 35) (f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering into such sublease, or entering into possession of the Premises or any portion thereof, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in writing. (g) Lessor's consent to any assignment or subletting shall not transfer to the assignee or sublessee any Option granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in writing. 12.3 Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to any subletting by Lessee of all or any part of the Premises and shall be deemed to be included in all subleases under this Lease whether or not expressly incorporated therein: (a) Lessee hereby assigns and transfers to Lessor all of Lessee's interest in all Rent payable on any sublease, and Lessor may collect such Rem and apply same toward Lessee's obligations under this Lease; provided, however, that until a Breach shall occur in the performance of Lessee's obligations, Lessee may collect said Rent. In the event that the amount 25A-16 collected by Lessor exceeds Lessee's then outstanding obligations any such excess shall be refunded to Lessee. Lessor shall not, by reason of the foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee's obligations to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of's written notice from Lessor stating that a Breach exists in the performance of Lessee's obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without any obligation or right to inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary. (b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attom to Lessor, in which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor. (c) Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor. (d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior written consent. 13. Default; Breach; Remedies. 13.1 Default; Breach, A "Default" is defined as it failure by the Lessee to comply with or perforin any of the terms, covenants, conditions or Rules and Regulations under this Lease. A "Breach" is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period: (a) The vacating or abandonment of the Premises. Lessee shall be deemed to have vacated the Premises if Lessee ceases to continuously operate its business in the Premises for a period of 5 consecutive days. (b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 5 days following written notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS, INCLUDING LESSOR'S RIGHT TO RECOVER POSSESSION OF THE PREMISES. (c) The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste, act or acts constituting public or private nuisance, and/or an illegal activity on the Prenuses by Lessee, where such actions continue for a period of 5 days following written notice to Lessee. (d) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable Requirements, (if) the service contracts, (iii) the rescission of an unauthorized assignment or subletting, (iv) an Estoppel Certificate or financial statements, (v) a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any document requested under Paragraph 40, (viii) material data safety sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure continues for a period of 10 days following written notice to Lessee. (e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease,, or of the rules adopted under Paragraph 2.9 hereof, other than those described in subparagraphs 13.1(a), (b), (c) or (d), above, where such Default continues for a period of 30 days after written notice; provided, however, that if the nature of Lessee's Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion. (f) The occurrence of any of the following events: (i) the making of any general arrangement or assignment for the benefit of creditors; (ii) becoming a "debtor" as defined in 1 l U.S.C. § 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions. take. (g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially (h) If the performance of Lessee's obligations under this Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination or attempted termination of a Guarantor's liability with respect to this Lease other than in accordance with the express terms of such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the guaranty, or (v) a Guarantor's breach of its guaranty obligation on an anticipatory basis, and Lessee's failure, within 30 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then existing IS 25A-17 resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time of execution of this Lease. 13.2 Remedies. If Lessee fails to perform any of its affirmative duties or obligations, within 10 days atter written notice (or lin case of an emergency, without notice), Lessor nay, at its option, perform such duty or obligation on Lessee's behalf, including but not limited to the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach: (a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which had been earned at the time of termination; (ii) the worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Lessee proves could have been reasonably avoided; (iii) the worth at the time of award of the amount by which the unpaid Rent for the balance of the term after the time of award exceeds the amount of such rental loss that Lessee proves could be reasonably avoided; and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of re -letting, including necessary renovation and alteration of the Premises, reasonable attorneys' fees, and that portion of any Leasing commission paid by Lessor in connection with this Lease applicable to the unexpired term of this Lease. The worth at the time of award of the amount referred to in provision (iii) of the immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the time of award plus one percent. Efforts by Lessor to mitigate damages caused by Lessee's Breach of this Lease shall not waive Lessor's right to recover any damages to which Lessor is otherwise entitled. If termination of this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separate suit. If a notice and grace period required trader Paragraph 13.1 was not previously given, a notice to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the notice required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease entitling Lessor to the remedies provided for in this Lease and/or by said statute. (b) Continue the Lease and Lessee's right to possession and recover the Rent as it becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to re -let, and/or the appointment of a receiver to protect the Lessor's interests, shall not constitute a termination of the Lessee's right to possession. (c) Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee's right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee's occupancy of the Premises. 13.3 Inducement Recapture. Any agreement for free or abated rent or other charges, or for the giving or paying by Lessor to or for Lessee of any cash or other bonus, inducement or consideration for Lessee's entering into this Lease, all of which concessions are hereinafter referred to as "Inducement Provisions", shall be deemed conditioned upon Lessee's full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor, subject to the timely, subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which initiated tine operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in writing by Lessor at the time of such acceptance. 13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to hncur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascortain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall immediately pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever is greater. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of such late payment. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee's Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor's option, become duo and payable quarterly in advance. 13.3 Interest. Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due shall bear interest from the 3lst day after it was due. The interest ("Interest") charged shall be computed at the rate of 10% per annum 16 25A-18 but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential hate charge provided for in Paragraph 13.4. 13.6 Breach by Lessor. (a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days alter receipt by Lessor, and any Lender whose name and address shall have been furnished Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that if the nature of Lessor's obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion. Under no circumstances shall Lessee have the right to terminate the Lease as a result of Lessor's breach or alleged breach of the Lease. (b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or if having commenced said cure they do not diligently pursue it to completion, then Lessee may upon 30 clays prior written notice to Lessor, elect to cure said breach at Lessee's expense, and should Lessor fail or refuse to reimburse Lessee for the actual, itemized, third -party cost of such care within 30 days following Lessor's receipt of Lessee's itemized invoice for same, Lessee may onset from Base Rent the actual and reasonable cost to perform such cure, provided however, that such offset shall not exceed an amount equal to the greater of one month's Base Rent or the Security Deposit, reserving Lessee's right to reimbursement from Lessor for any such expense in excess of such offset. 14. Condemnation. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively "Condemnation"), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than 10% of the floor area of the Premises is taken by Condemnation, Lessee may, at Lessee's option, to be exercised in writing within 20 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 20 days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in accordance with the foregoing, this .Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction Rentable Area of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whetter such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entitled to any compensation paid by the condemner for Lessee's relocation expenses, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph, All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled to any and all compensation which is payable therefor. In the event that this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation to the extent of the Condemnation Award actually received by Lessor, if any. 15. Brokerage. 15.1 Representations and Indemnities of Broker Relationships. Lessee and Lessor each represent and warrant to the otter that it has had no dealings with any person, firm, broker or finder (other than the Brokers, if any) in connection with this Lease, and that no one other than said named Brokers is entitled to any commission or finder's fee in connection herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensation or charges which maybe claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the indemnifying Party, including any costs, expenses, attorneys' fees reasonably incurred with respect thereto. 16. Estoppel Certificates. (a) Lessee (as "Responding Party") shall within 1.0 days after written notice from Lessor (the "Requesting Party") execute, acknowledge and deliver to the Requesting Party an estoppel statement or certificate in writing in the form designated by Lessor (or Lessor's Lender or purchaser), plus such additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party. (b) If the Responding Party shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party's performance, and (iii) not more than one month's rent has been paid in advance. Prospective purchasers and encumbrances may rely upon the Requesting Party's Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the facts contained in said Certificate. In addition, Lessee acknowledges that any failure on its part to provide such an Estoppel Certificate will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should Lessee fail to execute and/or deliver a requested Estoppel Certificate in a timely fashion the monthly Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 'tO% of the then existing Base Rent or $100, whichever is greater for remainder of the 'L ease. The Parties agree that such increase in Base Rent represents fair and 17 25A-19 reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's 'failure to provide the Estoppel Certificate. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to provide the Estoppel Certificate nor prevent the exercise of any of the other rights and remedies granted hereunder. (c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantors shall within 10 clays after written notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee's financial statements for the past 3 years. Alt such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth. 17. Definition of Lessor. The tern "Lessor" as used herein shall mean the owner or owners at the time in question of the fee title to the Premises, or, if this is a sublease, of the Lessee's interest in the prior lease. In the event of a transfer of Lessor's title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and/or covenants tinder this Lease thereafter to be performed by the Lessor. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only upon die Lessor as hereinabove defined. is. Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. 19. Days. Unless otherwise specifically indicated to the contrary, the word "days" as used in this Lease shall mean and refer to calendar days. 20. Limitation on Liability. The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor, or its partners, members, directors, officers or shareholders, and Lessee shall took to the Premises, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor's partners, members, directors, officers or shareholders, or any of their personal assets for such satisfaction. 21. Time of Essence. Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease. 22. No Prior or Other Agreements. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. 23. Notices, 23.1 Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be seat by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid., or by facsimile transmission, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee's taking possession of the Premises, the Premises shall constitute Lessee's address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing. 23.2 Date of Notice. Any notice sent by registered or certified mail, retum receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or courier, Notices transmitted by facsimile transmission or similar means shall be deemed delivered upon telephone confirmation of receipt (confinnation report from fax machine is sufficient), provided a copy is also delivered via delivery or mail. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on die next business day. 24. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of ally other term, covenant or condition hereof. Lessor's consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by Lessee, or be construed as (lie basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent. The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of Is 25A-20 no force or effect unless specifically agreed to in writing by Lessor at or before the time of deposit of such payment. THE TERMS OF THIS LEASE SHALL, GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE. 25. No ]tight To Holdover. Lessee has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease, In the event that Lessee holds over, then the Base Rent and Percentage Rent Rate shall be increased to 150% of the Base Rent and Percentage Rent Rate applicable immediately preceding the expiration or termination. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. Construction of Agreement. In construing this Lease, all headings and titles are for the convenience of the Parties only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. 28, Binding Effect; Choice of Law, This Lease shall be binding upon the parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated in the county in which the Premises are located. 29, Subordination; Attornment; Non -Disturbance. 29.1 Subordination, This Lease shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or security device (collectively, "Security Device"), now or hereafter placed upon the Premises, to any and all advances made on the security thereof, and to all renewals, modifications, and extensions thereof, Lessee agrees that the holders of any such Security Devices (ht this Lease together referred to as "Lender") shall have no liability or obligation to perform any of the obligations of Lessor under this Lease. Any Lender may elect to have this Lease superior to the lien of its Security Device by giving written notice thereof to Lessee, whereupon this Lease shall be deemed prior to such Security Device, notwithstanding the relative dates of the documentation or recordation thereof. 29.2 Attornment. In the event that Lessor- transfers title to the Premises, or the Premises are acquired by another upon the foreclosure or termination of Security Devise to which this Lease is subordinated (i) Lessee shall, subject to the non -disturbance provisions of Paragraph 29.3, attorn to such new owner, and uponrequest, enter into a new lease, containing all of the terms and provisions of this Lease, with such new owner for the remainder of the term hereof, or, at the election of the new owner, this Lease will automatically become a new lease between Lessee and such new owner, and (ii) Lessor shall thereafter be relieved of any further obligations hereunder and such new owner shall assume all of Lessor's obligations, except that such new owner shall not: (a) be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month's rent, or (d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner. 29.3 Non -Disturbance. With respect to Security Devices entered into by Lessor after the execution of this Lease, Lessee shall execute and deliver to Lessor a commercially reasonable non -disturbance agreement (a "Non -Disturbance Agreement") from the Lender which Non -Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and attorns to the record owner of the Premises. Within 60 days after the execution of this Lease, Lessor shall, if requested by Lessee, use its commercially reasonable efforts to obtain a Non -Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises. In the event that Lessor is unable to provide the Non -Disturbance Agreement within said 60 days, then Lessee may, at Lessee's option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non -Disturbance Agreement. 29.4 Self -Executing, The agreements contained in this Paragraph 29 shall be effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, attormnem and/or Non -Disturbance Agreement provided for herein. 30. Attorneys' Fees. If any Party brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees, Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision orjudgment. The term "Prevailing Party" shall mean a Party who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party of to 25A-21 its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to hilly reimburse all attorneys' fees reasonably incurred. In addition, Lessorshall be entitled to attorneys' fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). 31. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times alter reasonable prior notice for the purpose of showing the same to prospective purchasers, lenders, or Lessees, and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect on Lessee's use of the Premises. All such activities shall be without abatement of rent or liability to Lessee. 32. Auctions. Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor's prior written consent, which consent shall be granted or denied at Lessor's sole discretion. 33. Signs, Lessor may place on the Premises ordinary "Por Lease" signs during the last 6 months of the term hereof. All signs must comply with all Applicable Requirements. Lessee shall not place, construct, or maintain on the glass panes or supports of the show windows of the Premises, the doors, exterior walls or the roof of the Building, or anywhere else within the Shopping Center outside of the Premises, or on any interior portions of the Premises that are visible from the exterior of the Premises, any signs, advertisements, names, insignia, trademarks, descriptive material or any other items without Lessor's prior written consent, which consent shall be granted or denied at Lessor's sole discretion. Lessor shall designate the size, shape, color, design, and location of all exterior sign($) to be installed by Lessee, and Lessee shall, at Lessee's sole cost and expense, fabricate, construct and install all such sign(s) in full compliance with Lessor's designation and in accordance with the Sign Criteria for the Shopping Center attached hereto, if any. Lessee agrees to submit plans and specifications for Lessee's sign(s) for Lessor's written approval within 30 days after time ftdl execution hereof and to install such sign(s) prior to opening for business at the Premises. Lessor, at Lessee's cost, may remove any item placed, constructed or maintained in, upon or about the Premises or Shopping Center which does not comply with this paragraph. Lessee shall have the right to install lettering designating Lessee's business, on both sides of one panel of the pylon signage along Harbor Blvd at Lessee's expense; with Lessor's approval of location, size, style and color. All signs that are permanently attached to the Premises or Building shall become the property of Lessor at the expiration or earlier termination hereof; provided, however, that Lessee shall promptly remove all such signs if Lessor so elects, and Lessee shall promptly repair all damage caused by such removal. Lessee shall not place, construct or maintain in, upon or about the Premises any search lights, flashing lights, loudspeakers, phonographs or other visual or audio media. 34, Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or all existing subtenancies. Lessor's failure within 1.0 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor's election to have such event constitute the termination of such interest. 35. Consents. Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. In those express instances where consent is within the sole discretion of a party, the party shall have no obligation to adhere to a standard of reasonableness. Lessor's actual reasonable costs and expenses (including but not limited to architects', attorneys', engineers' and other consultants' fees) incurred in the consideration of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assigmnent, a subletting or the presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation therefor. Lessor's consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then -existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent, The failure to specify herein any particular condition to Lessor's consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent is being given. In the event that either Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall furnish its reasons in writing and in reasonable detail within 10 business days following such request. 36. Guarantor. 36A Execution. The Guarantors, if any, shall each execute a guaranty of lease in the form prescribed by Lessor. kl0 25A-22 36.2 Default. It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a) evidence of the execution of the guaranty, including the authority of the partysigning on Guarantor's behalf to obligate Guarantor, and in the case of a corporate Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel Certificate, or (d) written confirmation that the guaranty is still in effect. 37. Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee's part to be observed and performed ander this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof, 38. Options, If Lessee is granted any Option, as defined below, then the following provisions shall apply. 38.1 Definition. "Option" shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has on other property of Lessor; and (b) the right of first refusal or first offer to lease either the Premises or other property of Lessor; 38.2 Options Personal To Original Lessee. Any Option granted to Lessee in this Lease is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and, if requested by Lessor, with Lessee certifying that Lessee has no intention of thereafter assigning or subletting. 38.3 Multiple Options. In the event that Lessee has any multiple Options to extend or renew this Lease, a later Option cannot be exercised unless the prior Options have been validly exercised. 38.4 Effect of Default on Options. (a) Lessee shall have no right to exercise an Option: (1) during the period commencing with the giving of any notice of Default and continuing until said Default is cured, (ii) during the period of time any Rent is unpaid (without regard to whether notice thereof is given Lessee), (iii) during the time Lessee is in Breach of this Lease, or (iv) in the event that Lessee has been given 3 or more notices of separate Default, whether or not the Defaults are cured, during the Term of the Lease. (b) The period of time within which an Option may be exercised shall not be extended or enlarged by reason of Lessee's inability to exercise an Option because of the provisions of Section 38.4(a), 39. Security Measures. Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the acts of third parties. While Lessor does not assume any responsibility to provide any security measures or any liability for failure to provide security measures or for any inadequacy thereof, Lessor shall have the authority to institute or continue such security measures as Lessor in its sole discretion deems necessary or appropriate from time to time, the cost and expenses of which shall be considered Common Area Operating Expenses. 40, Reservations. Lessor reserves the right: (i) to grant, without the consent or joinder of Lessee, such easements, rights and dedications that Lessor deems necessary, (ii) to cause the recordation of parcel maps and restrictions, and (iii) to create and/or install new utility raceways, so long as such easements, rights, dedications, [naps, restrictions, and utility raceways do not unreasonably interfere with the use of the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights. 41. Building Planning, Lessor shall have the right at any time or times, upon giving Lessee not less than 60 days prior written notice, to provide and furnish Lessee with space of comparable visibility located elsewhere within any of the buildings within the Shopping Center and to move Lessee into such new space, provided that the usable area of such new space is not less than the usable area of the Premises and provided that all of Lessee's reasonable out-of-pocket moving expenses (including but not limited to the cost of moving Lessee's personal property, the cost of reprinting Lessee's stationery or other business materials with the new address, and the cost to relocate and reinstall Lessee improvements and Lessee's telecommunications and computer equipment) shall be paid by Lessor, and provided further that Lessor shall construct at Lessor's expense such improvements to such new space as shall be necessary to place it in a condition that is substantially comparable to the Premises. Except as provided in the immediately preceding sentence, Lessor shall have no obligation to improve such space or pay any other expenses incurred by Lessee as a result of such relocation. On such relocation, the terms and conditions of this Lease shall remain in fall force and effect, including but not limited to the Base Rent payable hereunder and Lessee's Share (even if the usable area of such relocated Premises is in excess of the usable area of the Premises), except that the Premises shall be in such new location. Upon Lessor's request, the Parties shall execute an amendment to this Lease in form required by Lessor confirming the relocation of the Premises to such new location. If the new space does not meet with Lessee's approval, which approval Lessee shall give or withhold in accordance with Paragraph 35, Lessee shall have the right to cancel this Lease by giving Lessor written notice thereof within 15 days of receipt of Lessor's notification of its intent to relocate Lessee. Lessee's failure to give such notice within such 15 day period shall be deemed Lessee's approval of the new space. If timely notice is given by Lessee, 21 25A-23 then this Lease shall terminate unless Lessor rescinds Lessor's prior notice of its intent to relocate Lessee within 10 days after Lessor's receipt of Lessee's notice of cancellation. 42. Authority; Multiple Parties; Execution. (a) If either Party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf, Each Party shall, within 30 days after request, deliver to the other Party satisfactory evidence of such authority. (b) If this Lease is executed by more than one person or entity as "Lessee", each such person or entity shall bejointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named Lessees had executed such document. (c) This Lease may be executed by the Parties in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 43. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions. 44. Offer. Preparation of this Lease by either Party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto. 45. Amendments. This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification. As long as they do not materially change Lessee's obligations hereunder, Lessee agrees to make such reasonable non -monetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises. 46. Arbitration of Disputes. An Addendum requiring the Arbitration of all disputes between the Parties arising out of this Lease O is OX is not attached to this Lease. 47. Accessibility; Americans with Disabilities Act. (a) The Premises: have not undergone an inspection by a Certified Access Specialist (CASp). 1J-have-utiElergene an 3rtS N.,« G.. .. r'.-ttif.a n ".,.,..� c..,, p.z., ��>s-�.sialist/annd-it-was-detetattined-Shatthe n.imn.l.". es—mot—all—applteable—eoas6rttstictn-related aeaessils I+� sada d putsuanttet a}}ferniafi�ivil CAdF X3331 et: avemidergene as inspeetie3i-by a Ce E €i@d A r Spm alist (BASF,) "°` ate* " "s."�Otermtned't''"�-c� n.:et>�ises-did-tt,^."�a",�le-ebrtstruc--Elgin-related--aec�andarQ,s-par-^ �-,Ttu Ea} fOrflia 't ,adL `cs� et-s@q (b) Since compliance with the Americans with Disabilities Act (ADA) is dependent upon Lessee's specific use of the Premises, Lessor makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee's specific use of the Premises and/or Lessee's Work or improvements to the Premises requires any modifications, alterations or additions to the Premises in order to comply with the Accessibility Laws, such work shall be performed by Lessee at Lessee's sole cost and expense. Subject to the terms of this Lease, Lessee shall indemnify, defend, hold harmless and reimburse Lessor from and against any and all claims, actions, causes of action, damages, demands, liabilities, obligations, losses or expenses (specifically including, but not limited to reasonable attorneys' fees, court costs, and expert witness fees), proceedings, suits, debts, or any claimed indebtedness alleged against Lessor, its agents and assigns, arising out of or in connection with, in whole or in part, directly or indirectly (i) any use by Lessee of the Premises which is not in compliance with the Accessibility Laws, (it) Lessee's failure to maintain the Premises in compliance with the Accessibility Laws, and/or (iii) Lessee's Work or Improvements to the Premises which are not in compliance with the Accessibility Laws, 48. Soldiers and Sailors Civil Relief Act (SSCRA). Lessee hereby certifies that he/she, individually, or any member or officer of the Lessee Corporation, Partnership, LLC or any other Organization is not currently an active member of any Branch or in the Reserve of any Branch of the Awned Forces of the United States of America, and. Further waives all of his/her/their rights to and under The Soldiers and Sailors Civil Relief Act (SSCRA). LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN. AND BY THE EXECUTION OF THIS LEASE SHOW 'THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. 22 25A-24 The parties hereto have executed this Lease at the place and on the elates specified above their respective signatures. LESSOR LESSEE Rio Vista West, LLC, City of Santa Ana, a municipal corporation a California Limited Liability By: Name Printed: Richard P. Kelter Title: Member Address: c/o WREM 3146 Red Hill Ave., Suite 150 Costa Mesa, CA 92626 Telephone: (714) 427-5977 Facsimile: (7 N) 427-5922 Email: kathy@i)wrem.com Email: Federal ID No. 33-0777028 See Attached By: — Name Printed: David Cavazos Title: City Manager Address: 20 Civic Center Plaza, 811' Floor Santa Ana, Ca, 92701 Telephone: (714) 647-5200 Facsimile: Email: SgvaZos0asanta-ana.or Email: Federal ID No. 23 25A-25 ATTEST: MARIA HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: 1. k Laura A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: Carlos Rojas Chief of Police CITY OF SANTA ANA DAVID CAVAZOS City Manager 25A-26 Exhibit "A" Site Phm ?q 25A-27 Exhibit "B" Sign Criteria zs 25A-28 EXHIBIT "E" MEMORANDUM OF LEASE TERM COMMENCEMENT This Form is prepared by Rio Vista West, LLC ("Lessor") and submitted to ("Lessee") per the terms of the Lease dated for Premises at McFadden Avenuc, Santa Ana, CA, Lessee shall either confirm all information as true and corrector make the appropriate notations where Lessee disagrees with the information supplied by Lessor. Confirmation of Lease Terms, 1. Date of Lease: 2. Date of Delivery of Premises by Lessor: 3. Lease Term Commencement Date: 4. Date of Expiration of Initial Lease Term: 5. Options to Renew: 6. Date of Minimum Rent Commencement: 7. Date of Adjustments (CAM) Commencement: R. Total rentable square footage of Premises: 9. Total prepaid Minimum Rent and Adjustments 10. Total Security Deposit: Lessee Acknowledges: Lessee has inspected the Premises, including without limitation its physical attributes, square footage, frontage and configuration, and accepts the Premises in their "As Is" condition as delivered by Lessor, except for the following (if "no exceptions", enter "NONE): _ Lessee acknowledges that the HVAC system, electrical, plumbing and mechanical systems servicing the Premises are in good working order as of the Lease Tenn Commencement Date, except for the following (if "no exceptions", enter "NONE"): Lessee has not relied on any statements, promises, inducements, representations or warranties by Lessor nor any agent, broker, employee, manager or contractor of Lessor in executing this Memorandum of Lease Tenn Commencement. Based on its own due diligence and inspection, Lessee acknowledges that the Premises are suitable for Lessee's intended use and that Lessor is not obligated nor responsible for any repairs, improvements or other work to be made to the Premises. Acknowledgment of Authority The undersigned executed this Memorandum of Lease Term Commencement on behalf of Lessor and Lessee warrant and represent that each is authorized by their respective principals to execute this document on its behalf so that its contents are binding on the parties without any further action, approval, consent or ratification by either party. "Lessor" "Lessee" By: Rio Vista West, LLC, a California Limited Liability Company By: Williams Real Estate Management, Inc._ Managing Agent By:____ .... _ Do Not Sign - approve for form only Audrey B. Williams, President EXHIBIT "E" Lessor's Initials: _ Lessee's Initials: 33 25A-29 EXHIBIT "F" FORM OF LESSEE'S ESTOPPEL CERTIFICATE The undersigned, as Lessee, under that certain Shopping Center Retail Lease dated , 20, made with RIO VISTA WEST LLC, a California limited liability company, as Lessor, hereby certifies as follows: I. That the undersigned has entered into occupancy of the Premises described in the Lease; 2. That the Lease is in fill force and effect and has not been assigned, modified, supplemented or amended in any way, except as follows: 3. That the Lease represents the entire agreement between the parties as to the leasing of the Premises: 4. That the Commencement Date of the Lease is S. That there is an unexpired term under the Lease of _ () years; 6. That all conditions of the Lease to be performed by Lessor and necessary to the enforceability of the Lease have been satisfied; 7. That there are no defaults by either Lessee or Lessor thereunder; 8. That no rents have been prepaid, other than as provided in the Lease; and 9. That on this date there are no existing defenses or offsets which the undersigned has against the enforcement of the Lease by Lessor. The undersigned hereby agrees: To disclaim all right, title or interest in the Premises except the rights granted by the Lease; and 2. To notify the holder of any mortgage affecting the Premises of any default on the part of Lessor which Lessee proposes to cure and deduct from rentals, or use as a basis for cancellation of the Lease and hereby grants to any such holder rise option to cure said default within a reasonable length of time. Lessee further agrees not to invoke any of its remedies under the Lease during any period that any such holder is proceeding to cure such default with due diligence, or is taking steps with due diligence to obtain the legal right to enter the Premises and cure the default. The undersigned hereby acknowledges that is presently the holder of a mortgage affecting the Premises. EXECUTED this day of 20__ BY: (Do Not Sign — for Form only ITS: 25A-30 EXHIBIT "G" RULES AND REGULATIONS Lessor hereby establishes the following odes and regulations for the safety, care and cleanliness of (i) the store areas (hereinafter referred to as the "demised premises") of any Lessee or Lessees of the Center (hereinafter referred to as the "Lessee"); (ii) the common area; and (iii) the Center in general, or for the preservation of good order: A. FOR THE STORE AREAS: 1. All floor areas of the demised premises (including vestibules, entrances, and air returns), doors, fixtures, windows, and plate glass shall be maintained in it clean, safe and good condition. 2. All trash, refuse, and waste materials shall be stored in adequate containers and regularly removed from the demised premises. "these containers shall notbe visible to the general public and shall not constitute a health or fire hazard, or a nuisance to any other Lessee. In the event that any lessee shall fail to remedy such a health or fire hazard, or nuisance, within five (5) days after written notice by Lessor, Lessor may remedy and/or correct such health or fire hazard or nuisance at the expense of the Lessee involved. No portion of the demised premises shall be used for lodging purposes. 4. Neither sidewalks nor walkways shall be used to display, store, or place any merchandise, equipment or devices, except in connection with sidewalk sales held with Lessor's prior written approval. The roof of the demised premises shall not be used for the storage of merchandise or equipment. 5. No public telephone, newsstand, shoeshine stand, refreshment, vending or other coin operated machine shall be installed or placed on the sidewalk or walkway area adjacent to the demised premises or out the Common Areas without Lessor's prior written approval in each instance. G. No person or persons shall use the demised premises, or any part thereof, for conducting therein a second- hand store, auction, distress or fire sale or bankruptcy sale, or "going -out -of -business" sale or "lost our lease" sale, without Lessor's prior written consent. 7. No portion of the demised premises shall be used for the storage of any merchandise, materials or other properties, other than those reasonably necessary for the operation of a Lessee's business. Lessor may, from time to time, inspect the demised premises to insure compliance with the foregoing provisions. 8. F,xcept for professionally prepared signs, Lessee shall not black out or otherwise obstruct the windows of the demised premises, without Lessor's prior written consent. 9. If a Lessee provides its customers with the use of shopping carts and/or baskets, such Lessee shall be responsible for causing said carts and/or baskets to be stored only in areas designated by Lessor. If such Lessee fails to routinely collect and store said carts as necessary (at least twice on a daily basis), Lessor may assume the responsibility of same and may bill the Lessee involved on an estimated monthly basis for such service. B. FOR THE COMMON AREAS: 1. All Lessees and their authorized representatives and invitees shall use any roadway, walkway, or mall (including the enclosed mall, if any) only for ingress and egress from the stores in the Center. Use of the Common Areas shall be in an orderly manner in accordance with directional or other signs or guides. Roadways shall not be used at a speed in excess of ten (10) miles per hour and shall not be used for parking or stopping, except for the immediate loading or unloading of passengers. Walkways and malls (including the enclosed mall, if any) shall be used only for pedestrian travel. 2. All Lessees and their authorized representatives and invitees shall not use the parking areas for anything but parking motor vehicles. All motor vehicles shall be parked in an orderly manner within the painted lines defining the individual parking places. During peak periods of business activity, Lessor can impose any and all controls Lessor deems necessary to operate the parking lot including, but not limited to, the length of time for parking use. No person shall use any utility area or truck loading area reserved for use in conducting business, except for 25A-31 the specific purpose for which permission to use these areas has been given. 4. No employee sliall use any area for motor vehicle parking except the area specifically designated for employee parking for the particular period of time the use of to be made. No Lessee shall designate an area for employee parking except the area designated in writing by Lessor. 5. Without the prior written consent of Lessor, no person shall use any of the Common Areas for (i) Vending, peddling or soliciting orders for sale or distributing of any merchandise, device, service, periodical, book, pamphlet, or other matter; (ii) Exhibiting any non-professional sign, placard, banner, notice or other written material or distributing any circular, booklet, handbill, placard, or other material; (iii) Soliciting membership in any organization, group, or association, or soliciting contributions for any purpose or parading, patrolling, picketing, demonstrating, or engaging in conduct that might interfere with the use of the Common Areas or be detrimental to any of the business establishments in the Center; (iv) Using the Common Areas for any purpose when none of the business establishments in the Center are open for business; (v) Discarding any paper, glass, or extraneous matter of any kind, except in designated receptacles; (vi) Using a sound -making device that is grossly annoying or unpleasant to the general public; or (vii) Damaging any sign, light standard, or fixture, landscaping material or other improvement or property within the Center. The above listing of specific prohibitions is not intended to be exclusive, but is intended to indicate the maturer in which the right to use the Common Areas solely as a means of access and convenience in shopping at the business establishments in the Center is limited and controlled by Lessor, 25A-32 EXHIBIT "H" Restricted Uses As of July 2015 1. As a grocery store, food store, market, mini market, convenience store, health food store or gourmet market. 2. As a fast food restaurant, with or without, drive-thru facilities. 3. As a shoe store. 4. As a Mexican Fast Food Restaurant, 5. As a store selling cellular telephones, accessories and related supplies. 6. As a business offering "Financial Services". Financial. Services means state and national banks, savings banks, credit unions, savings and loan institutions, mortgage and brokerage companies, and any other entities in the financial services business, as well as the operation of ATM's and financial Drive-thrus. 7. As a business offering money wiring or transfers, money loans, money orders, bill paying or related financial services. 8. As a store specializing in the sale of Vitamins, food supplements or related products. 9. As a Jewelry Store. 10. As a store selling (a) fresh ground and whole coffee beans, (b) express -based and coffee based drinks, (c) tea or tea based drinks, (d) gourmet brand -identified brewed coffee, and (e) blended beverages, including without limitation, those containing the following: coffee, espresso. 25A-33 25A-34 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: AMENDMENT TO LOAN AGREEMENT AND PROMISSORY NOTE WITH GUEST HOUSE LP FOR AFFORDABLE HOUSING AT 2151 EAST FIRST STREET {STRATEGIC PLAN NO. 5,3A; 3C) i CITY MANA6ER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: F-1102i;L•1TAW ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' 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 an amendment to the HOME Investment Partnerships Program loan agreement and Promissory Note with Guest House LP to include the Limited Partner in the agreement and to adjust the affordability of the units in the event of a foreclosure for 71 units of affordable housing at 2151 E. First Street, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION On February 3, 2016, City staff issued a Request for Proposals (RFP) soliciting applications for the acquisition and rehabilitation of an affordable housing project. The RFP indicated that the City would consider proposals for acquisition and rehabilitation projects only. It also indicated that the City had approximately $1,199,869 in federal HOME Program funds to be committed by July 31, 2016; $161,007 in federal HOME Program funds for Community Housing Development Organizations (CHDO) only; and fifty Project -Based Vouchers for homeless individuals and families. For the evaluation of the proposals received under the RFP, staff formed a Review Panel consisting of senior staff from the Planning and Building Agency, the Community Development Agency, Keyser Marston Associates Inc., and the Orange County Community Services Department. The panel met on April 20, 2016 to review the proposals and interview the developer teams. The top-rated proposal, Community Development Partners / Guest House, was unanimously recommended by the Review Panel to be submitted to the Community Redevelopment and Housing Commission for award and recommendation to City Council for final approval. On June 21, 2016 the City Council approved the award and authorized the City Manager and Clerk of the Council to execute a loan agreement with Guest House LP for HOME Investment Partnership Program funds not to exceed $1,199,869 for 71 units of affordable housing at 2151 E. First Street. 2513-1 Amendment to Loan Agreement - Guest House LP December 20, 2016 Page 2 Prior to closing their financing for the project, Community Development Partners requested an amendment to be considered for the HOME Loan Agreement for the project (Exhibit 2). The requested amendments to the HOME Loan Agreement and Affordability Housing Covenant is as follows: (1) Admission of the Limited Partner (NEF Assignment Corporation, an Illinois not-for-profit corporation) into the Partnership as limited partner thereof pursuant to the terms of the Partnership Agreement. (2) Copies of all notices which are sent to the Partnership under the terms of HOME Loan Documents shall also be sent to: NEF Assignment Corporation, 10 S. Riverside Plaza, Suite 1700, Chicago, Illinois, 60606. (3) Modify the affordability such that in the event of a foreclosure by Senior Loan, the maximum AMI Level for any units, other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, would thereafter continue to be restricted (as to both income and rent levels) at 60% of AMI. (4) Removal of the second sentence in Section 10(d) in the Promissory Note, which states, "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 Loan Note." The City of Santa Ana's HOME Loan is roughly 7.6% of the total loans and equity for the project. As a subordinate loan for a large affordable housing project such as this, it is not uncommon for a more senior lender to request amendments to our smaller loan agreement that allow the senior lender to complete their underwriting and commit their financing. The amendment to the loan agreement will ensure the long-term financial viability and sustainability of the project to serve chronically homeless individuals and families. Project Description Community Development Partners (Developer) is an experienced multifamily and mixed-use developer focused on creating and preserving vibrant affordable housing communities that are sustainable and enhance the fabric of the surrounding community. The Developer is experienced in developing housing for low-income seniors, families, veterans, and individuals experiencing homelessness. The Developer is based in Orange County. Since 2012, the Developer has received eight tax credit allocations for projects totaling over $100 million in project development costs. The Developer has created the Guest House, LP as an entity for this project. The Developer has partnered with Mercy House for this project to provide the services and expertise for serving the homeless population. Mercy House is a Santa Ana based non-profit service provider dedicated to serving populations with the most critical needs such as veterans and individuals who are homeless or disabled. Mercy House has been serving such populations for over 25 years. The project, located at 2151 E. First Street (Exhibit 1) is an acquisition and rehabilitation of an existing, market rate hotel. The project will provide 58 studio units and 14 one -bedroom units serving chronically homeless residents earning at or below 60% of the Area Median Income (AMI). The design will feature four two-story buildings, a community garden, commercial kitchen, 25B-2 Amendment to Loan Agreement - Guest House LP December 20, 2016 Page 3 outdoor courtyard and laundry facilities. Interior units will be improved with Energy Star appliances, new cabinets, countertops and vinyl flooring. The project currently consists of 77 units, however, five units will be removed to accommodate the commercial kitchen, new management area, and to create the required larger Americans with Disabilities Act (ADA) units, bringing the new total to 72 units, including one on-site manager unit. Resident services offices will also be incorporated for delivery of supportive services on-site. Mercy House will be the lead service provider for the project offering a variety of on-site resident services programs tailored to the needs of the residents. The supportive services program will be based on the Housing First principles coupled with on-going education and supportive services that focus on chronically homeless individuals. The project will 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. 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), Strategy A (Continue to explore options Citywide regarding the re -use of commercial or industrial buildings that are 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 understate law). FISCAL IMPACT There is no fiscal impact associated with this action. 4P Robert C. Corte -- Deputy City Manager City Manager's Office Exhibits: 1. Location Map 2. Amendment to Loan Agreement 3. Amended Promisroy Note 25B-3 25B-4 OR MR ( q f x m W vF i 3 {j TZ � . . ,,5 @ 4 . S 1: i Y' C si., $ A` .4 S } Preti[2 IIC -37 Lt {{• / i 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 SPACti AU G'nn'LIN RRECORUI USE FREE RECORDING REQUESTED [Government Code Section 6103] LOAN AGREEMENT by and between the CITY OF SANTA ANA And GUEST HOUSE LP A California Limited Partnership (2151 E. First Street, Santa Ana, California) Dated: hly Decembci 2016 Exhibit 2 I 25B-7 LOAN AGREEMENT HOME PROGRAM THIS i1FIRST AMENDED AND RESTATE;,' LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of I)eoeurhe 2016, is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation (referred to herein as "City") and Guest House LP, a California limited partnership with reference to the following: RECITALS: A. City has received an allocation of funds from the United States Department of Housing and Urban Development ("HUD") under the HOME Investment Partnership Program (the "HOME Program") (42 U.S.C. §12701, et seq.,) to be used in accordance with applicable statutory requirements and regulations (the "HOME Regulations") (24 CFR Part 92); B. Among the purposes of the HOME Program are (1) to expand the supply of decent, safe, sanitary, and affordable housing, with primary attention to rental housing, for very low-income and low-income Americans; and (2) to provide participating jurisdictions, on a. coordinated basis, with the various forms of federal housing assistance, including capital investment, mortgage insurance, rental assistance, and other federal assistance, needed (a) to promote the development of partnerships among the federal government, states and units of general local government, private industry, and nonprofit organizations able to utilize all available resources to provide more of such housing, and (b) to expand the capacity of nonprofit community housing development organizations to develop and manage decent, safe, sanitary and affordable housing; C, Developer is the owner of that certain property commonly known 2151 E. First Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The loans referenced herein shall assist in the acquisition and rehabilitation of said Property that is improved with a multifamily residential housing development. D. In furtherance of the HOME Program, Developer has applied to City for a loan with which to: 1, provide deeper affordability for a longer term, as well as acquire and rehabilitate the Property, and 2. thereafterto maintain, operate and professionally manage the Property as decent, safe, sanitary and affordable rental housing. E. City; on certain terms and conditions, desire to make such loan to Developer in order to make possible the acquisition and rehabilitation of the Property, thereby eliminating' blight while expanding the supply of decent, safe, sanitary and affordable housing. r F. If there is any discrepancy between Federal and State guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. G. The Loan Agreement and all of its attachments shall be enforceable by City in accordance with the terms thereof, Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City/HOME Loan Note and the City/HOME Deed of Trust provide a means of enforcement by the City if Developer is in breach of its obligations hereunder and thereunder, including liens on the Property, use and deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. 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 terns used herein, including, without limitation, in the Recitals above and in all other Project Docuunents, unless otherwise expressly defined, are defined where first used in this Agreement and/or as set forth in this Article 1. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and the rents governed by HUD. "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the City, attached hereto as Exhibit G. "Affordable Rent" means the monthly rents that are set forth in more detail in Section 7 of this Agreement. "Building Permit" means the building permit(s) issued by City and required for the rehabilitation, 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. "City/HOME Loan" means the loan to be made to Developer by City from HOME funds pursuant to Article 5 of this Agreement. 3 25B-9 "City/DOME Loan 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 5.8.2 in order to secure the Loan Note. "City/HOME Loan Note" means that certain promissory note in the original principal amount of $1,199,869.00, in the form attached hereto as Exhibit P, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the City/HOME Loan. "Close of Escrow" shall mean the date upon which the City/HOME Loan 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 and sale of the Property pursuant to the Purchase Contract. "County" means the County of Orange, California. "Developer" means Guest House LP, a California limited partnership, its successors and assigns. "Developer's Representative" shall mean the Chief Executive Officer of the Administrative General Partner of Developer or his/her designee. "Event of Default" has the meaning set forth in Section 20.1. "Executive Director" means both the Executive Director of the Community Development Agency, or his/her designee. "Extremely Low Income" 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. "General Partner(s)" means the General Partners of Developer, consisting of CDP Guest House LLC (Administrative General Partner) and Affordable Housing Alliance II, Inc. Dba Integrity Housing (Managing General Partner) and their respective successors and assigns. "Governmental Authority" means any governmental or quasi govermnental agency, board, bureau, commission, department, court, administrative tribtmal 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 4 25B-10 Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "HOME Compliance Period" is for a period of fifteen (15) years. "HOME Program" has the meaning set forth in Recital "A" above "HOME Regulations" has the meaning set forth in Recital "A" above. "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, stone drains, and adjacent street lighting). "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and ( d) all recourse and all non-recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Lrdemnitees" has the meaning set forth in. Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Limited Partner" means the Limited Partners of Developer, lsti )rporation an Illinois !1 -profit corporation, and their successors and "Loan Documents" means, collectively, this Agreement, the City/HOME Loan Note, the City/HOME Deed of Trust, the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. 5 25B-11 "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSG, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMI". "Partnership Agreement" means the Amended and Restated ��` ,"Limited Partnership C reemeta$ of Guest House LP dated �4areltl Novembejf 2016, as said Partnership Agreement may be amended from time to time.. "Permitted Encumbrances for the Affordable Housing Restrictions" means, collectively, die Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Permitted Encumbrances for the City Loan Deed of Trust" means, collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Project" means the acquisition and rehabilitation of the Property by Developer pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached hereto as Exhibit C, 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. "Property" means the Property that is located at 2151 E. first Street, within the City of Santa Ana, and is more Hilly described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Senior Lender" means Citibank, N.A.or any other holder of the Senior Loan Note(s). "Senior Loan" shall mean the senior loan being made by Senior Lender concurrent to the City Loan for payment of a portion of the acquisition and rehabilitation costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the deed of trust securing the Senior Loan by encumbering the Property. 6 25B-12 "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 Senior Lender. "Term" the terms and conditions contained herein shall remain in effect for 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. 1.2 Singular and Plural Terms. Any defined term used in the plural in this Agreement or any other City Loan Document shall refer to all members of the relevant class and any defined term used in the singular shall refer to any mnnber of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement or any Loan Document shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The tern "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terns "including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. [RESERVED] 3. SCOPE Or WORK/ PROJECT BUDGET A "Scope of Work" for the Property is attached hereto as Exhibit B. Any material change to the Scope of Work requested by the Developer shall be subject to the prior written approval of the Executive Director. A line -item budget for the Project, including a surnnrary statement of sources and uses of funds, is incorporated into Exhibit C (the "Project Budget" ). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the Executive Director. 4. [RESERVED] 7 25B-13 5. LOANS A. CITY LOAN: 1. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan of HOME funds to Developer in the principal amount of up to $1,199,869 (the "City Loan") for the acquisition and rehabilitation of the Property. 2. Clty/HOME Note and Deed of Trust. The City/HOME Loan shall be evidenced by the City/HOME Loan Note in the form attached hereto as Exhibit F. The City Loan shall be secured by the City/HOME Loan Deed of Trust in the form attached hereto as Exhibit E. The City/HOME Deed of Trust shall be a deed of trust encumbering the Property, subordinate to the Senior Loan(s) made to Developer. 3. City/HOME Loan Terms. The terms and conditions of the City/HOME Loan are as set forth in the City/HOME Loan Note which is a residual receipts note. The HOME compliance period is fifteen (15) years, commencing on the date that all work is complete and the Property is fully occupied. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent, City's obligation to disburse the Loan Amount is subject to the satisfaction, or waiver by the Executive Director, of the following conditions precedent: ( a) Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signature(s) acknowledged where necessary, each of the following docuttnents: (i) the Loan Agreement; (ii) The City/HOME Loan Note; (iii) The City/HOME Deed of Trust, (iv) The Affordability Restrictions on Transfer of Property; and (b) Title Insurance, City shall have received an LP -10 ALTA Lender's loan policy of title insurance (2006 edition), or evidence of a comunitment 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 City/HOME Loan Amount, showing Developer as the fee owner of the Property and insuring the City/HOME Deed of Trust to be valid priority liens on the Property. The City/HOME Loan Note and Deed of Trust shall be subordinate to the Senior Loan Note and First Deed. 25B-14 (c) Affordability Restrictions on Transfer of Property. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit G, the Affordability Restrictions on Transfer of Title 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, as applicable. (d) Docuunents Recorded, This Loan Agreement, the City/HOME Loan Deed of Trust and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (e) Request for Notice. For the benefit of City, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default"). (f) Insurance. City shall have received evidence satisfactory to the City Attorney that all of the policies of insurance required by Section 19 of this Agreement are in full force and effect. (g) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct as of the Close of Escrow as though made on and as of that date, and if requested by the Executive Director, 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 Executive Director, City shall have received a certificate to that effect signed by Developer's Representative, 6.2 Disbursement Procedures for Loan(s). A portion of the Loan proceeds shall be disbursed through Escrow to f nance the acquisition of the Property, with other proceeds being used for the rehabilitation (as evidenced in Exhibit Q. The Loan proceeds shall not be used for any purpose other than for aequ sition costs of the Property and/or rehabilitation/construction costs, including a Developer fee and soft costs related to development of the Project (costs all subject to City's prior review). The City allows for eligible costs to be paid by HOME loan fields that were incurred not more than 24 months prior to the HOME funds commitment date of this loan agreement in accordance with HOME regulations. 6,3 [Intentionally Omitted] 6.4 [Intentionally Omitted] 9 25B-15 6.5 Any Disbursement. City's obligation to make any disbursement of the Rehabilitation Portion (including the first and final disbursements) is subject to the satisfaction of the following conditions precedent: (a) Satisfactory Progress, The Executive Director shall be satisfied, based on his/her own inspections or other reliable information, that the rehabilitation is progressing satisfactorily in conformance with all applicable laws and other requirements (including HOME regulations). (b) Condition of Title. Either (i) the Executive Director reasonably believes that no event has occurred since the Close of Escrow that would give rise to a colorable claim against the Property (p,, a mechanic's lien) superior to the claim of City against the Property with respect to the subject disbursement, or (ii) City must have received, at Developer's expense but payable out of the Rehabilitation Proceeds, from the title insurer who issued City's LP -10 Title Policy, all endorsements thereto then reasonably required by City. (c) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other City Loan Documents shall be correct 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 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 rehabilitation portion retained pursuant to Section 6.12 is subject to the satisfaction of the following additional conditions precedent: (a) Rehabilitation ComVlete. The rehabilitation shall be complete. (b) Certificate of OccupancyIssued. Any portion of the rehabilitation 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 Executive Director, 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 rehabilitation, and no mechanic's or material man's lien shall be outstanding; or (ii) Ninety-five (95) days shall have passed since actual completion of the rehabilitation, and no mechanic's or materiahnan's lien shall be outstanding, or Developer shall have bonded over any such lien to City's reasonable satisfaction. 10 25B-16 6.7 Waiver of Conditions. The conditions set forth pertaining to City's obligation to make disbursements of the rehabilitation portion are for City's benefit only and the Executive Director may waive all or any part of such rights by written notice to Developer. 6.8 Disbursement Requests. The rehabilitation 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 perforned, 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 City Loan, Borrower shall deliver to City and to Senior Lender a draw request ("Draw Request"), and all required supporting information as set forth in the Loan Documents or as otherwise reasonably required by City or Senior Lender in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City and Senior Lender shall notify the other and Borrower of approval or disapproval of each Draw Request within five (5) business clays after receipt of the Draw Request, using the Senior Lender's "Disbursement/Change Order Approval Notice". City and Senior Lender shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 6.9 Manner of Disbursement. City 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. Disbursement will be made fifteen (15) days from approval. 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) rehabilitation costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the rehabilitation portion is or may be insufficient to pay all rehabilitation costs that may be payable under the City Loan Documents or otherwise in connection with the rehabilitation, 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: 11 25B-17 (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; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the Executive Director's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non-interest hearing account (the "Overrun Account") with City from which withdrawals may be made only with the consent of the Executive Director but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Project Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. 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 rehabilitation portion 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 rider 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. 6.12.1 Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as determined by the Executive Director) for "punch -list" items. Such holdback will be released when all punch -list items have been completed to the satisfaction of City. 6.13 Waiver of Disbursement Conditions, Unless City otherwiseagrees in writing, the malting by City of any disbursement with knowledge that ally condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made 12 25B-18 6.14 Modification of Disbursement Conditions and Procedures. The Executive Director shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the Rehabilitation Contract. 6.15 Other Terms and Conditions of Loan. A. The Nate shall become immediately due and payable, in the event of any of the following: (1) failure to complete the Project within four (4) years of the recording date; (2) HOME rental units must achieve initial occupancy within 18 months of project completion. (3) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; (4) an Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terns of this Agreement. 6.16 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 PROPERTY 7.1 Use Covenants and Restrictions. A. Developer agrees and covenants, which covenants shall run with the land and hind Developer, its successors, its assigns and every successor in interest to the Property that Developer will make all rental units on the Property available to very low households at rents affordable to such households for fifty-five (55) years from the effective date of this Agreement. The HOME restrictions for the nine (9) HOME assisted units shall be enforced until the date that is fifteen (15) years after the date on which the City reports the Project as complete to the Department of Housing and Urban Development, The City permits the Developer to limit the eligibility and/or give preference to homeless households (a particular segment of the population) in accordance with 24 CER 92.253(d), B. The Project shall consist of seventy-two (72) units, including one on-site manager's unit, of which there will be fifty-eight (58) studio units and fourteen (14) one - bedroom units. There shall be nine (9) HOME assisted units. The HOME assisted runts shall be floating units and shall be distributed throughout the complex with comparable amenities to the other units. The affordability rnix for the Project is as follows: 13 25B-19 Unit Tvoe AMI Level # of Units Studio _ 30% AMI 35 Studio 50% AMI 22 One -Bedroom 30% AMI 5 One -Bedroom 60% AMI 9 Studio Manager Unit 1 C. At initial lease up, households in the HOME assisted units cannot carr more than 50% of AMI, however existing tenants at the Property who are otherwise eligible under the HOME Program may continue their tenancy at the Property. Rental increases shall be in conformance with federal and state law. After the fifteen (15) year HOME compliance period, the City shall require that the units remain affordable, with rents calculated based on assumed household size at the same income levels D. All of the HOME units will be restricted to occupancy by fifty percent (50°/9) of the Area Median Income (AMI). Current residents whose incomes exceed eighty percent (80%) of the AMI will be increased to either thirty (30%) percent of their monthly household income or market rent for the neighborhood, whichever is lower. E. Maximum Occupancy will be two (2) people per room plus one (1). Example for a two- bedroom unit, five (5) people would be maximum occupancy. F. Affordable rents shall be governed by California Health and Safety Code Sections 50052.5 and 50053(b)(2), and as provided in the HOME Regulations 24 CFR section 92.2. G. Developer must have a written lease between tenant and owner for a period of at least one year, unless a shorter period is mutually agreed upon. Leases must be consistent with HOME Regulations 24 CFR section 92.209(g). H. Rents During ConstrUCtiOn%Rellabilitati0n: (a) All HOME units shall be charged not more than the Low HOME rent, as amended from time to time (currently $914.00 for a one -bedroom unit and $853 for a studio unit). 7.2 Affordable Gross Starting Rents (Less Reasonable Utility Allowance): Initial rents may be recalculated to allowable rental amounts at the throe of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. Affordable rents for non -HOME assisted units will be based on the rents published annually by California Tax Credit Allocation Committee (TCAC). 14 25B-20 A. HOME Assisted Units # of Units Max Gross Monthly Rent Very Low Studio 4 $ 853 1 Bedroom 5 $ 914 (1) In no event shall the rent charged to the HOME assisted tenants be more than that amount of the low rent as published by HUD, as amended from time to time. (2) 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. (3) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME floating units. (4) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of assisted units, including HOME - assisted units, to verify compliance with affordability requirements. For the HOME units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. 7.3 Rent Increases; On an annual basis, the City shall provide the Developer with tine maxirmmn allowable schedule of rents for the Property. In no event can Developer charge any tenant more than such amount. 7.4 Prohibited Fees. The Developer and subsequent owner is prohibited from charging fees that are not customary, consistent with HOME Regulations 24 CFR section 92.504(c)(3)(xi). The Developer and subsequent owner can charge reasonable application fees to prospective tenants; other fees only to the extent that they are reasonable and customary for the project area; and fees for services provided to tenants, provided that these services are not mandatory. 7.5 Maintenance of the Property. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at. any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a. reasonable period of time not to exceed thirty (30) days from the date of written notice from the City, unless such condition cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such care, 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 Article 17 of this Agreement. During the affordability period, the Property must meet all applicable State and local codes. The Property must be free of all health and safety defects during the affordability period. 15 25B-21 7.6 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, mental or physical disability, 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 Enough 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 ruin with the land and shall remain in effect for the term of the Agreement. S. DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perform any term of provision of this Agreement within the time periods provided herein for such performance constitutes a default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injure party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (3 0) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of written notice of termination to Developer. 8.2 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to core, 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 right 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 sane 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 16 25B-22 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. 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. IH Guest House Santa Ana, LLC, the managing general partner of Developer (a) is a California limited liability company, validly existing and in good standing under the laws of the State of California, (b) has all requisite authority to conduct its business and own and lease its properties, and (c) is qualified and in good standing in every jurisdiction in which the nature of its business makes qualification necessary or where failure to qualify could have a material adverse effect on its financial condition or the perfonnance of its obligations under the Loan Documents. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 9.2 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 of Developer of, and the performance by Developer of its obligations under, each Loan Document has been authorized by all necessary action and does not and will not: (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 approval not heretofore obtained Larder, 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 airy kind (other than Corder the City Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (d) 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. 17 25B-23 9,23 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 of 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 Loan (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 f rnished 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 Uability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to City in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to City. 9.6 Governmental Requirements. Developer is in compliance with all laws relating to the Property and all Govermnental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or 18 25B-24 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 Litization. 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 Nonliability of City Officials and Employees, No member, official or employee of the City shall be personally liable to the Developer in the event of any default or breach by the City or for any amount which may become due to Developer or on any obligations under the terms of this Agreement. 9.13 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 rehabilitation/development of the Property. Accordingly, Developer further expressly acknowledges and agrees that this Agreement is a personal right of Developer that is neither negotiable, transferable, nor assignable except as set forth herein. Developer may assign some or all of its rights under the Agreement only with the prior written consent of the Executive Director (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assiganient by a limited partner of Developer to an affiliate, or as otherwise provided in the Deed of Trust. 19 25B-25 9.14 Applicable Lary. This Agreement shall be interpreted, governed and enforced under federal and state laws. 9.15 Third Parties. Thus 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 rehabilitation of the Property. 9.16 Control of Property. The parties acknowledge that neither the City has at anytime participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 10. CONDITIONS FOR REHABILITATION 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 rehabilitation and conversion of the Property. 10,2 Commencement and Completion of Rehabilitation. The rehabilitation shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and frilly 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 Rehabilitation Contract shall not be modified except pursuant to change orders. All change orders: (a) shall be in writing, numbered in sequence, signed by Developer and submitted to City prior to the proposed effectiveness thereof and accompanied by any working drawings and a written narrative of the proposed change. (b) Shall be subject to the Executive Director's and Bank's prior written approval of the Executive Director and Bank. 10.4 Entry and Inspection. At all times prior to completion of the rehabilitation, upon reasonable notice, City and their agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the rehabilitation are stored, (b) the right to inspect all labor performed and materials furnished for the rehabilitation, and (c) the right to inspect and copy all documents pertaining to the rehabilitation. 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 20 25B-26 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 in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. (c) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of notices in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number of job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of person(s) taking applications for each of the position; and the anticipated date the work shall begin. 21 25B-27 (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 fording 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 pail. 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts." After the foregoing Section 3 Clause, there shall be a signature block for the contractor, as applicable, the following text shall be included immediately above the signature block: "The contractor/provider by his/her signature affixed hereto declares under penalty of perjury that contractor has read the requirements of the Section 3 Clause and accepts all its requirements contained therein for all of his/her operations related to this contract." To the extent applicable, the Developer shall comply and/or cause compliance with Section 3 Clause requirements for the Project. For example, when and if Developer or its contractor(s)/subcontractor(s) hire(s) fall time employees, rather than voluurteer labor or materials, Section 3 is applicable and all disclosure and reporting requirements apply. 10.6 Rehabilitation Information. From time to time during the course of the rehabilitation, 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 rehabilitation, 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 rehabilitation, diligently file a notice of cessation n1 the event of a cessation of labor on the rehabilitation for a period of thirty (30) clays or more, and take all actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the City by any person furnishing labor or materials to the Property, Developer shall immediately give written notice of the same to City and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the same, (b) effect the release 22 25B-28 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. 10.8 General Contractors who are Related 'Parties to the Developer, if the Project is developed with general contractors who are Related Parries to the Developer, the Developer must be audited to the subcontractor level by an outside auditing firm approved by the City. The Developer shall pay for the audit to the subcontractor level by an outside auditing firm. 11, FEDERAL (HOME PROGRAM) COVENANTS 11.1 Qualification as Affordable Housing, As more particularly provided in the Affordability Restrictions on Transfer of Property, Developer shall use, manage and operate the Property in accordance with the requirements of 24 CFR 92.252 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.2 Tenant and Participant Protection. Developer shall comply with the requirements of 24 CFR 92.253. 11.3 [Intentionally Omitted] 11.4 Handicapped 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 Linder the HOME Program; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36 in order to provide handicapped accessibility to the extent readily achievable. 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 finding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 11.7 Maintenance of Drue-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 of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846) and implementing regulations at 24 CFR 35, as applicable. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property (24 CFR 92.351) in compliance with the City's adopted Program (a copy of which is attached hereto and incorporated herein as Exhibit H). 11.10 EauaI Opportunity and Fair Housina. Developer shall carry out the rehabilitation and perform its obligations under this Agreement in compliance with all of 23 25B-29 the state and federal laws and regulations regarding equal opportunity and fair housing described in 24 CFR 92.350, 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 Misplacement 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 Project, 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 rehabilitation. Developer agrees to cooperate Pully and completely with City in meeting the requirements of 24 CFR 92.253 and shall take all actions and measures reasonably required by the Executive Director in connection therewith. All applicable state guidelines must also be followed. (a) Developer acknowledges and agrees to hire a Relocation Consultant to provide relocation services, pursuant to the Uniform Relocation Act and Real Property Acquisition Policies Act of 1970 ("URA") and 24 CFR 92.253. (b) The City, Developer, and Relocation Consultant will meet periodically during the relocation to provide updates and review tenant files, including at Project approval and prior to final benefit calculations. The Developer and Relocation Consultant shall carry out activity in compliance with URA and the City's Acquisition and Relocation Policy and Procedures Manual ("Manual"). (c) The Developer and Relocation Consultant shall maintain accurate records and files pertaining to the temporary and permanent relocation of tenants, in accordance with URA and the City's Manual. (d) The Developer and Relocation Consultant shall provide all relocation and tenant files to the City once relocation is complete at the Project. 11.13 Other Program Requirements. Developer shall carry out each activity in compliance with all federal laws and regulations described in subpart F1 of 24 CFR 92, except that Developer does not assume City's responsibilities for environmental review in 24 CFR 92.352 or the intergovernmental review process in 24 CFR 92.359. 11.14• Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of 24 25B-30 funds under this Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the acquisition and rehabilitation of the Property). The amount of each request shall be limited to the amount needed. 11.15 Eligible Costs. Developer shall use HOME 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 Executive Director may reasonably require in order to permit City to meet the record keeping and reporting requirements required of it pursuant to 24 CFR 92,508. 11.17 Uniform Administrative Requirements Cost Principles and A ]Requirements for Federal Awards. Developer shall comply with the requirements standards of 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 the HOME assisted units on the Property as required by the Program after the date of rehabilitation 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 ineome. (A) Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis, in accordance with HOME regulations and guidelines, Every fifth (51') year, Developer shall require new original income documents to be submitted by tenants. Tenants in HOME assisted units whose incomes no longer comply with federal income guidelines shall have their rents adjusted in accordance with federal HOME guidelines (24 CFR 92.252-92.253). (B) HOME 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..21 Other HOME Program Requirements. Developer shall comply with all other applicable requirements of the HOME Program. 11.22 Controlling Covenants. If there is a discrepancy between State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 2,5 25B-31 12. MAINTENANCE, MANAGGEMENT, 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 non -nal 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 fiom time to time, Developer shall promptly and faithfully perform and observe each of the following provisions: 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 arnormt of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). 12.1.3.1 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 the Property in satisfaction of such Imposition or otherwise impair City's interests under the Loan Documents, and (c) Developer has furnished City 26 25B-32 with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties), 12.1.3.2 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. 12,1.3.3 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 Project Oneratine Account. Subject to the requirements of the Senior Lender, 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 Project Budget, as it may be revised from time to time with City approval, Developer may make withdrawals from this account solely for the payment of project expenses (including, without limitation, funding reserves and the making of debt service payments), project fees and permitted distributions to the partners of the Developer. Withdrawals from this account for other purposes may be made only with the prior written approval of the City. 12.5 Replacement Reserve Account. Developer must establish or cause to be established a segregated interest-bearing replacement reserve depository account ("Replacement Reserve Account") no later than sixty (60) days after the Certificate of Completion is filed. 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 fiends 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, religion, sex, mental or physical disability, 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 Linder or through it, establish or permit any such practice or practices of discrimnnation or segregation with reference to 27 25B-33 the selection, location, mnlber, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Properly. 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 rehabilitation of the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, mental or physical disability, national origin, or ancestry. Developer shall take affinnative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, 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 and subcontractor 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 R.,,presentation 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 tar4cs located in, on or under the Property, 14.2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and envirommental permits applicable to the Rehabilitation of the Property, (b) irmnediately 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 28 25B-34 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 fonn the basis of an environmental claim against the Property or Developer. 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and their respective officers, directors, employees and agents (collectively the "Indemnitees ") 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 lndenmitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property other than arising from the gross negligence, willful misconduct and/or illegal actions of any Indemnitee. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the City Loan Note or Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that Executive Director otherwise consents in writing: 15.1 Existence, 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 City Deed of Trust as a valid second priority deed of trust on the Property and take all actions, and, execute and deliver to City all documents, reasonably required by City from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to City, within ten (10) days of Developer's learning thereof, of each of the following: (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claire 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; 29 25B-35 (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; W any material default by Developer or any other party ]under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; (g) the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and/or (h) any material adverse change in the financial condition of Developer. 15.4 Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to City all docimients, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents; to protect and further the validity, priority and, enforceability of the City Deed of Trust; to subject to the Deed of Trust any property intended by the terms of any Loan Documerit(s) to be covered by the City Deed of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. Notwithstanding anything to the contrary set forth herein, the Developer shall have no obligation to execute any document, or take any action, which would (i) change a, material term of any Loan Document, (ii) change or impair any material right of Developer and/or (iii) increase the liability of Developer or any partner thereof. 15.5 Annual Financial Statements. Developer shall deliver to City, within one hundred twenty (120) 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 Administrative General Partner that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, (ii) fairly present Developer's financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies. 15.6 Audits and Access to Records. Developer agrees that City, the U.S. Department of Housing and Urban Development, the Comptroller General of the United States or any of their authorized representatives shall have the right of access, upon 30 25B-36 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 period ends. 15,7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the City every fifth (561) year beginning January 2019. 16. OTHER NEGATIVE COVENANTS While any obligation of Developer ander the City Note or City Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that Executive Director 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 rehabilitation 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 Executive Director, which consent may be withheld in the Executive Director'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 rehabilitation. 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. 31 25B-37 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the rehabilitation 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 rehabilitation. If City declines to furnish a Certificate of Completion after written request from Developer, the Executive Director 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 Rehabilitation, City may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with City of a bond or other form of security acceptable to the Executive Director 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 City is and shall remain solely that of borrower 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 rehabilitation, including matters relating to: (i) the performance of the rehabilitation work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress of the rehabilitation; 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 are 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(s) shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and 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; 32 25B-38 (c) City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and (d) By accepting or approving anything required to be performed or given to City under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 18.2 Indemnity. Developer shall defend (by counsel satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the malting 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 illegal conduct, gross negligence or willful misconduct of City. Developer's obligations under this Section shall survive the cancellation of the City Loan Note, release and reconveyance of the City Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. 18.2.1 Nothwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result as the repayment of principal and/or interest under the Loan. 18.3 Reimbursement of City. Developer shall reimbr sse 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 ander 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 33 25B-39 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 rehabilitation; (b) prior to commencement and following completion of the rehabilitation, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (c) upon commencement of the rehabilitation raid at all times prior to completion of the rehabilitation, 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 reasonable required by City from time to time, and in no event less than $1,000,000; and (t) 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(s) in the policies required under subparagraphs (d) and (e) with primary coverage. Certificates of insurance for the above policies (and/or original policies, if required by City) shall be delivered within ten (10) days after demand therefore, and prior to start of any rehabilitation 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 City Attorney. 34 25B-40 19.2 City Attorney May Modify. The City .Attorney may modify the type and amounts of insurance required pursuant to this Section. 19.3 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi -public use of any portion of the Property (collectively, "Condemnation"), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and/or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 19.4 Delivery of Proceeds to City. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 19.5 Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions") within ninety (90) days (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 o the Property, within two years (or such longer 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 rehabilitation 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 (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 sante 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. 35 25B-41 (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Any Proceeds acrd 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 elects in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within ninety (90) days (unless extended pursuant to Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by City 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 their sole and absolute discretion. 19.8 Restoration. Nothing in this Article 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation; Treatment of Comuensation 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 deteradne, 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 unpaired, any condemnation proceeds may be used by the Borrower 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 the 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 36 25B-42 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 Loan Note when due, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the payment of money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) tinder any Loin Document, and such failure is not cured within thirty (3 0) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30) -day period, such failure shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within ninety (90) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; (t) Work on the rehabilitation ceases for thirty (3 0) 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 rehabilitation beyond the required completion date set forth in this Agreement; (h) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues instayed for sixty (60) days or more for any reason; 37 25B-43 (i) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the Executive Director's prior written consent; 0) 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, rehabilitation or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued, or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or (1t) any of the Senior Loan documents is revolted or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the Executive Director's prior written consent, or (ii) Developer defaults or otherwise fails to perform any of its duties or obligations hider 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 true 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 irnuriediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 shall automatically, without notice or other action on City's part, cause all such amounts to be immediately due and payable; (b) lin 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 rehabilitation 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 38 25B-44 security, all in such order and manner as City elects in its sole and absolute discretion; and, (d) Suspend or terminate the award of HOME funds if Developer fails to comply with any term of that award. 20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the City in the exercise of any other right or remedy, No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. The City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations; City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights. 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: Guest House LP c/o CDP Guest House LLC 3416 Via Oporto, Suite 301 Newport Beach, California 92663 Attn: Kyle Paine With a copy to: IIIC Guest House Santa Ana, LLC c/o Affordable Housing Alliance II, Inc ABA Integrity Housing 39 25B-45 4 Venture, Suite 295 Irvine, CA 92618 With acopy.to: NEF+ Assig rnient Co oration -60 10 S', Riverside Plaza. 'Siirt6j1 Chicago, Illinois 60606 If to City: City of Santa Ana Executive Director (CDA) 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 With a copy to: City Attorney City of Santa Ana. 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 Addresses for notice inay be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non -receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the malting of the Loan 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 Bindiny, Effect, Assismnent 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 shalt 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 assigmnent without such consent shall, at City's option, be void. 21.6 Prior Aereements. 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 40 25B-46 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 Dociument that is held to be rmenforeeable 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 shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed. 21.11 Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 21.12 Conflict of Interest. No member, official or employee of the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 21.13 Warranty Against 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 Nonliabilitv of Citv 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 rehabilitation of the Property, 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 41 25B-47 the right to use such plans and data without compensation to Developer. Such right of City shall be subject to any right of the preparer of the plans to their use, 21.16 Authority to Enter AgLLg ent. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 4.2 25B-48 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date set forth at the beginning of this Agreement. GUEST HOUSE LP a California limited partnership ADMINISTRATIVE GENERAL PARTNER CDP Guest House LLC a California limited liability company By: Community Development Partners, a California Corporation, its sole member wM Paine, President Dated: MANAGING GENERAL PARTNER IH Guest House Santa Ana, LLC a California limited liability company By: Affordable Housing Alliance II, Inc. Dba Integrity Housing A Colorado nonprofit corporation By: Anjela Ponce, President Dated: 43 25B-49 ATTEST: CITY OF SANTA ANA Maria D. Huizar David Cavazos Clerk of the Council City Manager Dated: Dated: APPROVED AS TO FORM: SONIA R,,,,G RY41-10, City Attorney By: Attorney Dated: RECOMMENDED FOR APPROVAL: Robert C. Cortez Special Assistant to the City Manager City Manager's Office 44 25B-50 FIRST AMENDED AND RESTATED CITY LOAN NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA $1,199,869.00 J+4 December_, 2016 Santa Ana, California 1. Principal Amount of Loan For value received, and Guest House, L.P., a California limited partnership ("Borrower") promises to pay to the order of THE CITY OF SANTA ANA ("City"), at 20 Civic Center Plaza, 61h Floor, Santa Ana, California 92701, or at such other place as the City may from time to time designate in writing, or to the assignee of the City, the principal sum of ONE MILLION ONE HUNDRED NINETY NINE THOUSAND EIGHT HUNDRED SIXTY NINE DOLLARS ($1,199,869.00) or so much thereof as shall be disbursed hereunder, with three percent simple interest (3.0%) commencing upon filing of Notice of Completion. City and Borrower have heretofore entered into that certain Loan Agreement dated concurrently herewith (the "Loan Agreement"), pertaining to the acquisition and rehabilitation of certain real property described in the Loan Agreement as the "Property," commonly known as 2151 East First Street, and the operation of the Property as affordable housing for Extremely - Low, Very -Low and Low Income households. This Note is made pursuant to, entitled to the benefits of and referred to as the City Loan Note in the Loan Agreement; that certain "Affordability Restrictions on Transfer of Property" between Borrower and City, dated on or about the date hereof; and that certain Subordinated City Deed of Trust and Assignment of Rents between Borrower and City, dated on or about the date hereof (the "City Deed of Trust"). This Note, the Loan Agreement, the Affordability Restrictions on Transfer of Title, and the Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Loan Agreement. 2. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "Acquisition Costs" shall mean the costs and expenses of Borrower to acquire the Property, as set forth in the Project Budget attached to the Loan Agreement. "City Loan" shall mean the loan evidenced by this Note. :1011=1kit? 25B-51 "City's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50%) of the City's share of the total Residual Receipts from the Property as further described in Section 5 hereof. "Calendar Year" means each consecutive twelve (12) month period from January I to December 31. "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 consummating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal, interest and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "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 no greater than 8% of gross rents; (iii) Owner Partnership Management and Asset Management Fees not to exceed 6% of gross rents; (iv) Deposits into required reserves; (v) all other actual, reasonable cash operating costs and expenses, calculated on an 2 25B-52 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) Reserved. (c) 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. (vi) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). (vii) Deferred Developer Fees. "Project" shall mean the acquisition and rehabilitation of the Property by Borrower pursuant to the Loan Agreement. "Property" shall mean the real property located at 2151 East First Street, Santa Ana, California, described in the City Deed of Trust. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amoi at of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan. "Refinancing Proceeds" shall be disbursed as set forth in Section 7 hereof. "Residual Receipts" shall mean the Gross Revenues from the Properties located at 2151 E. First Street, Santa Ana, California, for each year, less deductions for Operating Expenses from the same buildings, applicable to each such year less the items listed in Article 5 of the Partnership Agreement, to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, conveyance or lease (other than to a tenant for occupancy or a transaction set forth in Section 15(c) hereof) of the Property or any portion 25B-53 thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. "Sale Proceeds" shall be disbursed as set forth in Section 8 hereof. "Senior Loan" shall mean the senior loan being made by Citibank, N.A., concurrent to the City Loan for payment of a portion of the Acquisition and Rehabilitation Costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Term" the term for repayment of this Note shall mean fifty-five (55) years from the date of recording. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 7 (Refinancing Proceeds), 8 (Sale Proceeds) and 10 (Accelerated Loan Repayment). 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 repayment of said loan. Such loan shall be repaid with net cash flow prior to the residual receipt split. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment. a. After any deferred Developer Fee has been paid, as set forth hereinabove, 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 twenty (120) days after the year in which the rehabilitation of the Project is completed, and on or before the 120th day of each Calendar Year thereafter, the Borrower shall submit to the City a detailed statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due. 4 25B-54 c. Except as otherwise provided in Section 4, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of principal and interest under their loans. The remaining amount of the Residual Receipts shall remain with the Borrower to be used by Borrower as determined by the General Partners of Borrower, including, without limitation, for distribution to the partners of the Borrower. d. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any accrued but unpaid interest, if any, then to reduce the principal balance of the loans. 6. Reserved. 7. 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 not to exceed the outstanding balance of principal and interest on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in fall the balance remaining on the Senior Loan; next, the Borrower shall pay to the City fifty percent (50%) of the Refinancing Proceeds to the extent of the outstanding balance on this Note. The remaining Refinancing proceeds shall remain with Borrower to be used by Borrower as determined by the General Partners of Borrower, including, without limitation, for distribution to the partners of the Borrower. Such payment shall be due on the date of such Refinancing, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the Loans. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loans in full. 8. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal and interest on this Note, to the 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 Borrower shall pay to the City fifty percent (50%) of the total Sale Proceeds, not to exceed the outstanding amount of principal and interest due on this Note. This fifty percent (50%) represents the total payment due under the City Note. The remaining Sale Proceeds shall remain with Borrower. Such payment shall be due on the date of such Sale, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the Loans. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loans in full. 9. Buy Out Option. 5 25B-55 Prior to the initial disbursement under this Note, the Borrower shall grant to the City a Right of First Refusal (subject to any purchase option and/or right for first refusal granted to one or more of the general partners of the Borrower) (the "City Right of First Refusal") to acquire the Property if Borrower desires to transfer the Property to an entity which is not affiliated with one or more of Borrower's general partners. The City Right of First Refusal shall be in form and substance acceptable to the City and shall comply with all applicable Tax Credit requirements. 10. Accelerated Loan Pavment. The full principal amount outstanding plus accrued but unpaid interest thereon, shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 15 hereof, unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City Loan, the City approves such sale -and the purchaser assumes the balance of the City Loan in accordance with the terns 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 pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default by Borrower as to any other loan or loans by City 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. 9n any reasonable reqiiest by Beffewer to modify the terms or extend the Term of this City Note. 11. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, together with any accrued but unpaid interest, if any, and other sums owed to the City under this Note, if any, at any time without penalty. 12. Lawful Money. Principal and interest are payable in lawful money of the United States of America. 13. Application of Payments; Late Charges. 25B-56 a. Any payments received by the City pursuant to the terns hereof shall be applied first to sums, other than principal and interest, due the City pursuant to this Note, next to the payment of all interest accrued to the date of such payment, and the balance, if any, to the payment of principal. b. If any payment is not received by the City within ten (10) days following the due date thereof, then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4%) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of interest and/or principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 14. Security This Note is secured by the City Deed of Trust. 15. 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 15, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. 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 7 25B-57 Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordable Housing 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 that is wholly owned by the Borrower and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan together with all accrued and unpaid interest, shall be repaid to the City at the time of each Refinancing or partial Refinancing. c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of any 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 accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 16. Event of Default. Subject to the provisions of Sections 23 and 25 hereof, the occurrence of any of the following shall be deemed to be an event of default ('Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within five (5) days of the due date; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Loan Agreement, or the Affordability Restrictions on Transfer of Property within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after the cure period, if any, provided therein. 17. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the City 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 25B-58 Trustee shall cause to be duly filed for record and City may foreclose on the City 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 together with all accrued interest shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4%). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 18. Attorneys' Fees. If this City Loan Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 19. 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. 20. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 21. Non-recourse. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower 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. 22. Subordination. It is hereby expressly agreed and acknowledged by Borrower and City that the City Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to the Senior Loan Deed of Trust held by Citibank, N.A. 23. Notice of Default. 25B-59 a. Subject to the applicable cure periods set forth in Section 16 and extensions of time set forth in Section 25, and subject to the further provisions of this Section 23, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy -with reasonable diligence and during any period of curing shall not be in default. 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 tinder the tenns of this Note or the City Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of seven (7) days after such notice is given within which to cure the default prior to exercise of remedies by City under this Note and the City Deed of Trust. f If a non -monetary event of default occurs under the terms of this Note or the City Deed of Trust, prior to exercising any remedies theretnder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given. 24. Insurance and Condemnation. 10 25B-60 24.1 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 rehabilitation; (b) prior to commencement and following completion of the rehabilitation, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (c) upon commencement of the rehabilitation and at all times prior to completion of the rehabilitation, 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 reasonable required by 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(s) in the policies required under subparagraphs (d) and (e) with primary coverage. Certificates of insurance for the above policies (and/or original policies, if required by City) shall be delivered within ten (10) days after demand therefore, and prior to start of any rehabilitation 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 City Attorney. 24.2 City Attorney May Modify. The City Attorney may modify the type and 11 25B-61 amounts of insurance required pursuant to this Section 24.3 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi -public use of any portion of the Property (collectively, "Condemnation"), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and/or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 24.4 Delivery of Proceeds to City. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 24.5 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 two years (or such longer 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 rehabilitation 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 (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. 12 25B-62 24.6 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 umdisbursed 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 elects in their sole and absolute discretion. 24.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within ninety (90) days (unless extended pursuant to Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by City 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 their sole and absolute discretion. 24.8 Restoration. Nothing in this Article 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 24.9 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. 24.9.1 Notwithstanding the foregoing, as long as the value of City's liens are not impaired, any condemnation proceeds may be used by the Borrower for repair and/or restoration of the Project. 24.10 Waiver of Subrogation. Developer hereby waives all rights to 13 25B-63 recover against the City (or any officer, employee, agent or representative of the City) for any loss incurred by Developer from any cause insured against or required by any Loan Dociument, 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. 25. Force Majeure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 26. Assignments. The City, and 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. 14 25B-64 This City Note is hereby agreed to and executed on the date first set forth above. "BORROWER" Guest House LP a California limited partnership ADMINSTRATIVE GENERAL PARTNER CDP Guest House LLC a California limited liability company COMMUNITY DEVELOPMENT PARTNERS, a California Corporation, its sole member to Kyle Paine, President Dated: MANAGING GENERAL PARTNER IH Guest House Santa Ana, LLC a California limited liability company AFFORDABLE HOUSING ALLIANCE II, INC, a Colorado nonprofit corporation, its sole member Anjela Ponce, President Dated: 15 25B-65 25B-66 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE; AGREEMENT WITH IPC FUEL DISTRIBUTION, A SANTA ANA VENDOR, FOR THE PURCHASE OF UNLEADED AND DIESEL FUEL (STRATEGIC PLAN NO. 6,2) e --Q, , � - ITY MANAGER 1:7FM15161004WIMIllus ►1 CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a one-year agreement from January 1, 2017 through December 31, 2017 with IPC Fuel Distribution for the purchase of unleaded and diesel fuel in a total amount not to exceed $950,000, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The City has an inventory of nearly 500 vehicles that use unleaded or diesel fuel. Over the past several years, Finance and Management Services Agency - Fleet Services has utilized a cooperative agreement with SC Fuels from Orange, California to provide fuel for these vehicles. The fuel storage tanks that are located at the City Corporate Yard and Police facility are very large and as a result, the City can obtain the lowest pricing options due to the large one-time delivery amount. Upon reviewing our scope and fuel delivery options, staff learned that there are not any local county contracts that are similar in nature. Most other jurisdictions have much smaller storage tanks which require more frequent and expensive deliveries. Staff has identified though a contract between Ventura County and IPC Fuels that could be temporarily utilized until a formal Request for Proposal process can be developed during calendar year 2017. IPC Fuels is a Santa Ana based company and the delivery terms of their agreement with Ventura County is very similar to our needs. Additionally, the pricing for this contract is approximately $.04 cents a gallon less than our current pricing structure. The City currently has a sales tax rebate agreement with IPC Fuels, but this agreement would have no impact on such payments made to the vendor. All federal and state taxes and fees will be consistent with the existing agreement and any future agreement. 25C-1 Agreement for Unleaded and Diesel Fuel December 20, 2016 Page 2 According to Municipal Code Section 2-807(c) Non -bid purchases, a contract may be exempted from competitive bidding from vendors whose names are on current established lists and have been awarded the same type of purchase contract by a federal, state, or local agency after a competitive bidding process. STRATEGIC PLAN ALIGNMENT Approval of this item supports City's efforts to meet Strategic Plan Goal #6 - Community Facilities & Infrastructure, Objective #2 (address deferred maintenance on City buildings and equipment). FISCAL IMPACT Funds for the period of January to June 2017 in the amount of $475,000 are budgeted and available in the Central Stores Gas & Diesel Fuel account (07610102 63300). Funds for FY 2017-18 (July to December 2017) budget in the amount of $475,000 will be included in the Stores & Property Control Gas & Diesel Fuel account (07610102 63300) AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez I)o Executive Director Finance and Management Services Agency EXHIBIT: 1. Agreement 25C-2 EXHIBIT 1 AGREEMENT FOR PROVISION OF GASOLINE AND DIESEL FUEL THIS AGREEMENT is made and entered into this 20th day of December, 2016 by and between IPC ((TSA), Inc. ("Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a Contractor with special skill and expertise to supply City's annual gasoline and diesel fuel needs. B. Contractor is a wholesale distributor of diesel, gasoline, LNG/natural gas, jet fuel, and other petroleum products that maintains its headquarters in the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting 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 Contractor shall provide all fiiel, transportation, labor, supervision, equipment, and incidentals associated with the provision of fuel, as further described in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. Base price of fuel will be Thursday Unbranded Oil Price Information Service / L.A. Early Day, as discounted by the amounts appearing on Exhibit B, with base pricing fixed for the following Monday — Sunday. The total surn to be expended under this Agreement shall not exceed $950,000. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work perforined, subj ect to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. Y ikm This Agreement shall commence on January 1, 2017 and continue through December 31, 2017, unless terminated earlier in accordance with Section 14, below. 4. INDEPENDENT CONTRACTOR Contractor 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 25C-3 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 Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services, Contractor 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. S. INSURANCE Prior to undertaking performance of work Linder this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor'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, 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. 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. Workers' Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for workers' compensation or to undertake self-insurance. Prior to commencing the performance of the work tinder this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Pollution liability: $5,000,000 per occurrence. e. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: (i) Contractor shall maintain all insurance required above in frill 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, 25d-4 (iv) Contractor shall supply City with a fully executed additional insured endorsement. £ If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to fimiish 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 Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Contractor 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 negligence or willful misconduct of the Contractor or its, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Contractor further agrees to indemnify, hold hannless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or propertyrights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Contractor's indernnification obligations in this section shall survive expiration of this Agreement. Notwithstanding the foregoing, to the extent Contractor's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. 7. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor shall maintain completo 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 bylaw, from the elate of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor 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. Contractor 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 Contractor under this Agreement. 25(;-5 S. CONFIDENTIALITY If Contractor receives from the City information which clue to the nature of such information is reasonably understood, to be confidential and/or proprietary, Contractor 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 oiily 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 Contractor disclosed in a publicly available sotiuce; (c) is in rightful possession of the Contractor an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with the performance of services specified inader 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 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: To Contractor: Executive Director Finance and Management Services Agency City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 IPC (USA), Inc. 4 Hutton Centre Drive, Suite 700 Santa Ana, CA 92707 Attn: Blanca Hurtado 25'b-6 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. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor regarding the subject matter therein, 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 Contractor or the City. Each party to this Agreement aelmowledges 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 Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement, shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted. by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies, 14. TERMINATI®N This Agreement may be terminated by the City upon thirty (3 0) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such, notice of termination, subj Oct to the following conditions: a. As a condition of such payment, City may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. 25C-7 b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 15. NONDISCRIMINATION 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 employer and shall comply with all applicable federal, state and local laws and regulations. 16. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that maybe brought or arise out of, in connection with or by reason of this Agreement. 17. PROFESSIONAL LICENSES Contractor 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. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such pennits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 18. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth iri the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA Maria D. Huizar Cleric of the Council David Cavazos City Manager 25t:-8 APPROVED AS TO FORM: SONIA R. CARVALFTO CONTRACTOR: City Attorney Ey:� /w .c�� -- John Funk Assistant City Attorney RECOMMENDED FOR APPROVAL: Francisco Gutierrez, Executive Director Finance and Management Services Agency Name: Title: 25C-9 EXHIBIT A SCOPE OF SERVICES Contractor shall provide fuel, transportation, labor, supervision, equipment, and incidentals associated with the provision of fuel to the City of Santa Ana. Such equipment shall include without limitation puunps, hoses, and any equipment needed to appropriately pump fuel being delivered, Deliveries shall be made at designated City premises no later than 36 hours from time of order, unless specifically required or under emergency situations. Deliveries shall be made by owned or contract motor carriers. Product that leaks from hoses or coupler comiections shall be cleaned tip and removed by Contractor at Contractor's sole expense, including product in spill containers, Contractor has committed to providing fuel in Emergency and/or Disaster situations and will maintain 24/7 communications in such instances. Contractor shall maintain records of City's purchases and make them available for audit and inspection at request of City. Contractor shall record the quantities, cost, delivery locations, and taxes for each delivery. Contractor shall provide City a copy of such records within ld days of City's request. Contractor shall supply Material Safety Data Sheets to City as required by law. All gasoline and diesel delivered under this Agreement shall meet the latest requirements of the California Air Resources Board, federal, and local governments as well as fuel industries laws, codes, requirements, standards and guidelines currently in effect or that may come into effect during this Agreement. 25G-10 EXHIBIT B The OPIS price shall be adjusted in accordance with the plus/minus cents per gallon plus delivery. The stated adjustment factor shall be firm for the initial term of the contract and will not be subject to change. All deliveries shall be F.O.B. Destination in Orange County. Pricing will be based on Thursday Unbranded OPIS LA Early Day. Pricing will be locked for the following Monday -Sunday. The price for the "delivery charge" shall be firm for the initial period of the contract and should be invoiced as a separate line item. Police & Yard 87 Unleaded Regular Gasoline (Truck/Trailer Delivery) 8500 gal or More Discount from OPIS Utilizing Ventura County Agreement (Los Angeles, CA OPIS Gross Weekly "Thursday" Unbranded Rack Average with CAR report (Monday- Sunday) Delivery Charge (Orange County) Police & Yard #2 ULS Diesel Clear (Truck/Trailer Delivery) 8500 gal or More Discount From OPTS Utilizing Ventura County Agreement (Los Angeles, CA OPTS Gross Weekly "Thursday" Unbranded Rack Average with CAR report (Monday - Sunday) Delivery Charge (Orange County) Total & Yard #2 ULS Diesel Red Dyed - Generators (Tank Wagon Delivery) 500 gal or less Discount From OPTS Utilizing Ventura County Agreeement (Los Angeles, CA OPIS Gross Weekly "Thursday" Unbranded Rack Average with CAR report (Monday - Sunday) Delivery Charge (Orange County) Total 25C-11 25C-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: AGREEMENT AMENDMENT WITH ACTIVE NETWORK FOR MAINTENANCE AND SUPPORT OF CLASS SOFTWARE (STRATEGIC PLAN NO. 5,6C) ti CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a second amendment to the agreement with Active Network for maintenance and support of CLASS software, which will extend the term end -date from November 30, 2016 to November 30, 2017 and increase the total amount under the existing agreement and amendment by $11,965.91 for the renewal period for a total amount of $34,230.88 for the three-year period, subject to non -substantive changes approved by the City Manager and City Attorney, DISCUSSION The City utilizes a software application to process recreational class registrations and facility reservations for its athletic fields, recreation centers and senior centers. The system is essential for operations, but requires on-going maintenance and support from Active Network to be functional. The City purchased the system over 10 years ago. In June 2015, the City entered into its most recent yearly maintenance and support agreement and has amended it once to extend the term end -date. This amendment will extend the term end -date one final time as the software will be obsolete in November 2017. PRCSA has already started the process for selecting new software. The effective date of the agreement amendment will be November 30, 2016, which is when the vendor signed the amendment, before the expiration of the previous amendment. The vendor has continued to provide services on the same terms and conditions. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #6 (Focus projects and programs on improving the health and wellness of all residents), Strategy C (Integrate a variety of health and wellness programs into existing 25D-1 Agreement Amendment with Active Network for Maintenance and Support of CLASS Software December 20, 2016 Page 2 programming at each of the city's community/recreation centers (e.g. Develop equitable health access points)). FISCAL IMPACT Funds are available in the following account for the specified year: Accounting Unit Gerardo Mouet Executive Director Parks, Recreation and Community Services Agency FY 16/17 11,965.91 APPROVED AS TO FUNDS AND ACCOUNT: Francisco Gutierrez Executive Director Finance and Management Services Agency 25D-2 AMENDMENT (No. 2) TO THE AGREEMENT This Amendment No. 2 (this "Amendment") is made effective as of (the "Amendment Effective Date") by and between City of Santa Ana ("Client") and Active Network, LLC (successor in Interest to The Active Network, Inc.) ("Active") and emends that certain Products and Services Agreement, dated as of June 9, 2015 as amendment by Amendment #1 dated November 30, 2015 (together the "Agreement") entered Into by the Parties. Client and Active are also individually referenced herein as a "Party" and collectively as the "Parties." Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement. NOW THEREFORE in consideration of the mutual covenants, recitals and promises contained in this Amendment and for other good and valuable consideration, the receipt and sufficiency of which Is hereby acknowledged by each Party, the Parties hereto hereby agree as follows: Changes to the Agreement. Section 6.1 Termination of the Agreement is deleted in its entirety and replaced with the following: 6.1 Termination. This Agreement will terminate on November 30, 2017, unless terminated: (a) at the option of either party if the other party materially defaults in the performance or observance of any of its obligations hereunder and fails to remedy the default within thirty (30) days after receiving written notice thereof; or (b) without limiting (a), at the option of Active if Client breaches its payment obligations, provided that the right of termination will be in addition to all other rights and remedies available to the parties for breach or default by the other, or (c) as allowed in Section 23, 2, Full Force and Effect. Except as expressly modified herein, the Agreement remains in full force and effect. All references in the Agreement to "this Agreement," "hereto," "hereof," "hereunder" or words of like Import referring to the Agreement shall mean the Agreement as amended by this Amendment. In the event any of the terms and conditions of the Agreement conflict with the terms and conditions of this Amendment, the terms and conditions of this Amendment shall prevail only as to the subject matter expressly stated herein. 3. Counterparts. This Amendment may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document, binding against each of the Parties. To the maximum extent permitted by law or by any applicable governmental authority, this Amendment may be transmitted by facsimile, electronic mail (including pdf) or other transmission method with the same validity as if it were an Ink -signed document and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. IN WITNESS WHEREOF,. the Parties hereto have executed this Amendment as of the Amendment Effective Date, Active Network, LLC City of Santa Ana by its authorized signatory by its authorized signatory 25D-3 Name: 1411a,,s ' fr,vu,rar"'- Name: David Cavazos Title: Title: City Manager / Date: Date: Approved es to Form: Attest: Recommended for Approval: n M. Funk Assistant City Attorney Revised 03!1012014 Maria D. Huizar Clerk of the Cotincil Gerardo Mouet Executive Director, PRCSA 25D-3 ACTIVE netwca* Contact Into: 717 N. Hamood Street Dallas, TX 752.01 United States Phone: 489-251-0300 Option 4 - Fax: 469-533-3940 Questions? Email us at AalissAR&CILIve corn Bill To: CITY OF SANTA ANA Attn: Accounts Payable PO BOX 1988 M-23 SANTA ANA, CA 92702 United States Invoice CITY OF SANTA ANA Cast Invoice Invoice Dato Customer PO# 3610 4100153843 31 -AUG -16 Ship Tor CITY OF SANTA ANA. AM: PO BOX 1988 W23 SANTA ANA, CA 92702 United States Please Pay this Amount: Notes: Yearly installment 1 of 1 Due Date Transaction Type Curr 29 -NOVAS INV -INC COM SOL USD UOM Unit Price Ext Amount Year 6,685.25 6,685.25 Year 4,264,25 4,254.25 Year 182.33 182.33 Year 678.70 678.70 Year 185,38 165.38 Sup -total: 11,865.91 Tax Total: 0.00 Invoice Total; 11,965.91 Balance Due: 11,965,91 Please Remit Check Payment to our Lockbox: Please Remit Wire/ACH Payments to: Active Network, LLC Beneficiary's Bank: JP Morgan Chase, New York NY 10004 26158 Network Place Benellclary's Bank SWIFT BIC: CHASUS33 Chicago, IL 60673-1261 Banefclary's Account Number: 455194881 Beneficiary's Bank Wire Routing Number: 021000021 Beneficiary's Bank ACH Routing Number: 124001545 Beneficiary's Name: Active Network, LLC Beneficiary's Address: 10182 Telesis Court, San Diego, CA 92121 TO PAY BY CREDIT CARD OR ACH, OR TO SET IJP RECURRING PAYMENT, PLEASE CONTACT US AT A I'veARfw cove com. PLEASE BE SURE TO INCLUDE ACTIVES INVOICE NUMBER ON YOUR REMITTANCE 2501-4 Safes Person Sates Order # - Order Type Quote If Terms Mainz Renewal 3C4100003'774 -6 -R29 -AUG -16 90 NET 13:27;19 -R29 -AUG -16 13:27:19 Ln Item # Description Delivery Method Ordered Invoiced Class � Maintenances& Support Renewal - 1 70719MR. Registration (includes Flex Reg) - per 1,00 1.00 workstation: 12/01/2016 -- 11/30/2017: Class- Maintenance & Support Renewal - 2 70721MR Reservations (Includes QulckRez) - per 1.00 1.00 workstation: 12/01/2016 -11/3012017: 3 T0636MR Class - Maintenance & Support Renewal - 1.00 1,00 Crystal Reports: 12/01/2016 -1 1 /3000 17: Class - Maintenance & Support Renewal - 4 70667MR Brochure.link (Desktop Publishing 1.00 1,00Integration) - per server. 12/01/2016 - 11/30/2017:: Class - Maintenance & Support Renewal - 5 70708MR Muldlingual.-Front Desk- par workstation: 1.00 1.,00 1210112016 -- 11/3012017: Please Pay this Amount: Notes: Yearly installment 1 of 1 Due Date Transaction Type Curr 29 -NOVAS INV -INC COM SOL USD UOM Unit Price Ext Amount Year 6,685.25 6,685.25 Year 4,264,25 4,254.25 Year 182.33 182.33 Year 678.70 678.70 Year 185,38 165.38 Sup -total: 11,865.91 Tax Total: 0.00 Invoice Total; 11,965.91 Balance Due: 11,965,91 Please Remit Check Payment to our Lockbox: Please Remit Wire/ACH Payments to: Active Network, LLC Beneficiary's Bank: JP Morgan Chase, New York NY 10004 26158 Network Place Benellclary's Bank SWIFT BIC: CHASUS33 Chicago, IL 60673-1261 Banefclary's Account Number: 455194881 Beneficiary's Bank Wire Routing Number: 021000021 Beneficiary's Bank ACH Routing Number: 124001545 Beneficiary's Name: Active Network, LLC Beneficiary's Address: 10182 Telesis Court, San Diego, CA 92121 TO PAY BY CREDIT CARD OR ACH, OR TO SET IJP RECURRING PAYMENT, PLEASE CONTACT US AT A I'veARfw cove com. PLEASE BE SURE TO INCLUDE ACTIVES INVOICE NUMBER ON YOUR REMITTANCE 2501-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: AGREEMENT FOR ENVIRONMENTAL CONSULTING SERVICES WITH KOA CORPORATION TO PROVIDE A TRAFFIC IMPACT STUDY FOR THE METRO EAST MIXED USE OVERLAY DISTRICT EXPANSION PROJECT (STRATEGIC PLAN NO. 3,2 B; 5,3 A, B, C) {SURPLUS ALLOCATION FUNDING} C�fY MANAG RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: F.1:7 000=1W ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement with KOA Corporation ("KOA") for environmental consulting services to prepare a traffic impact study with an aggregate amount not to exceed $80,518.75 for a one-year term expiring on December 31, 2017, subject to non -substantive changes approved by the City Manager and City Attorney. Project in accordance with the Council approved Surplus Allocation Plan as of October 20, 2015. Department: Project: Category Total Funding: Planning and Building Metro East Zone Expansion Investment $100,000 BACKGROUND The City Council allocated $100,000 in funds to the Planning and Building Agency in Fiscal Year 2015-2016 for the purposes of procuring environmental consultants to prepare the required technical studies for the Metro East Mixed Use Overlay District expansion project. After conducting an Initial Study in-house, staff identified the need for three distinct technical studies to facilitate the expansion project: an air quality and greenhouse gas emissions study, a traffic impact study, and an innovative and phased parking solutions study. To ensure an equitable procurement process, staff issued three requests for proposals (RFPs) for each of the identified studies. On August 16, 2016, staff issued RFP No. 16-100 to procure a consultant to prepare a traffic impact study. Five (5) responses were received, and the City selected KOA Corporation as the recommended firm with which to enter an agreement based on relevant experience and competitive pricing. 25E-1 Agreement with KOA Corporation December 20, 2016 Page 2 DISCUSSION The City of Santa Ana requested proposals from planning and environmental consulting firms for preparation a traffic impact study required for the Metro East Mixed Use (MEMU) Overlay District expansion project, which will extend the MEMU designation westward along First Street to Grand Avenue. The scope of work includes any and all work efforts related to preparation of a traffic impact study for the expansion project, including analysis, preparation, community outreach and related compliance with CEQA. Expanding the MEMU Overlay District west along primarily First Street will affect up to 48 vacant, underdeveloped, or abandoned parcels (33.52 acres) currently developed with or entitled to allow a variety of commercial and residential land uses. The expansion of the MEMU overlay district designation to these properties would allow development of residential and/or mixed-use projects. The expansion project will also amend the MEMU document to update and refine existing development standards and allowable land uses within both the new and existing MEMU Overlay District areas. Expansion of the Metro East Overlay District is expected to produce up to 1,888 new residential units (3,776 residents), a maximum of approximately 2,835,000 square feet of new building area, which includes 944,500 square feet of non-residential square footage. The expansion project will create additional housing development opportunities that are consistent with opportunity sites identified in the City's 2014-2021 Housing Element. KOA is an experienced planning and engineering consulting firm in Southern California that has prepared technical studies for environmental documents for projects throughout the region, including traffic studies in Santa Ana required for the Transit Zoning Code environmental impact report, the Main and MacArthur environmental impact report, and the original MEMU Overlay District and addendum. 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), Strategy B (update the City's Zoning Ordinance to be consistent with the updated General Plan and include equitable, innovative, business friendly zoning practices); 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), Strategies A, B, and C (to increase opportunities for mixed-use residential projects, ensure compliance with the City's Housing Opportunity Ordinance, and 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). 25E-2 Agreement with KOA Corporation December 20, 2016 Page 2 FISCAL IMPACT Funds in the amount of $80,518.75 are available in FY 2016-17 PBA Council Special Project account (05016018-62300). Hassan HagL ani, ATcP Executive Director Planning and Building Agency SM:rb sm\RFCA — KOA Traffic 12-20-2016 Exhibit: 1. Consultant Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez az Executive Director YO Finance & Management Services Agency 25E-3 25E-4 CONSULTANT AGREEMENT THIS AGREEMENT is made and entered into this 20'h day of December 2016 by and between KOA Corporation (KOA) a California Corporation (hereinafter "Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City`). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of environmental consulting services, City desires to have a traffic impact study performed for the Metro East Mixed Use Overlay District Expansion Project. 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: SCOPE OF SERVICES Consultant shall perform those services as set forth in Exhibit A to this Agreement for the preparation of an environmental document to analyze traffic impacts associated with the Metro East Mixed Use Overlay District Expansion project. 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 Eighty Thousand Five Hundred and Eighteen Dollars and Seventy -Five Cents ($80,518.75) during the term of this Agreement. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2017. unless terminated earlier in accordance with Section 15, below. The Term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney, EXHIBIT 1 25E-5 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 anyway in its use of the Documents and Data at anytime, 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 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. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit C upon execution of this Agreement. 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. 25E-6 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. 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. 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. 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. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging 25E-7 the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 8. 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 minirnum 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 disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 25E-8 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 Copies to: Executive Director of Planning & Building Agency City of Santa Ana 20 Civic Center Plaza (M-20) P.O. Box 1988 Santa Ana, California 92702 Fax 714-647-5897 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 Consultant: KOA Corporation Min Zhou, PE 2141 W. Orangewood Ave., Suite A Orange, CA 92868 Tel. (714) 573-0317 Fax. (714) 573 -9534 Email - mzhou@koacorp.com A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, 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 25E-9 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 are not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement.. 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. 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. 0 25E-10 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. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. (Signature Page Follows} 7 25E-11 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:G- Lisa torck Assistant City Attorney RECOMMENDED FOR APPROVAL: Hassan Haghani, AICP Executive Director Planning & Building Agency 25E-12 CITY OF SANTA ANA DAVID CAVAZOS City Manager CONSULTANT Min Zhou, PE Vice President Tax ID# 95-4515908 EXHIBIT A SCOPE OF SERVICES The scope of services presented below is intended to meet the City of Santa Ana's requirements for the preparation of an environmental document to analyze traffic impacts associated with this Metro East Mixed Use Overlay District Expansion project. TASK I — INITIATION OF THE PROJECT KICK-OFF KOA senior staff will meet with City staff to discuss the project, study area, the proposed method of analysis, agency coordination, and other relevant considerations. We will verify our approach and any additional specific study requirements prior to any data collection. We will discuss potential traffic issues with City staff to identify any additional concerns and recommendations. Since we prepared the previous study, there is no need for us to spend a lot of time reviewing the relevant documents and understanding the project context. TASK 2 — STUDY AREA REFINEMENT A total of 32 study intersections are listed in the RFP, as demonstrated in the map below. However, three intersections are redundant, per the list in the RFP. Another 15 intersections are suggested to be chosen when the study area is refined. Up to 47 intersections may be chosen for the study, based on our initial investigation and the 50 -trip threshold measures. Most of the 15 extra intersections are supposed to be located west of Interstate 5, while some intersections could be located in the City of Tustin. Our budget assumes that a total of 47 intersections will be analyzed. In addition to intersection analysis, approximately 20 roadway segments will be chosen and analyzed by the KOA team, with the City's approval. 25E-13 TASK 3 _. DATA COLLECTION & FIELD REVIEW Traffic Data Peak weekday intersection turn movement counts will be compiled from existing and new count data for up to 47 roadway intersections. Intersection turn movement counts will be conducted from 7:00 a.m. to 9:00 a.m. and from 4:00 p.m. to 6:00 p.m. during weekday periods. We will check with the City and see whether any City -conducted counts and/or counts from other area traffic studies could be utilized for some study intersections. Weekday daily traffic counts will be conducted for 20 roadway segments. KOA will also conduct a comparison of traffic count data (the new 2016 traffic counts with the 2007 counts) to understand the traffic pattern/circulation changes and volume growth or decreases within the study area. Field Review KOA will review the roadway segments and intersections in the field to observe and inventory roadway geometries, existing traffic operations, base line width, striping patterns, and traffic. Signal timing and phasing information will be obtained from the City as well. Cumulative/Area Projects A list of cumulative/area projects will be compiled in the surrounding area, from both the City of Santa Ana and the City of Tustin. Trip distribution patterns for those cumulative projects will be provided by KOA for City staff's review and approval before assigning those cumulative projects to the roadway system. Land -use GIS Database KOA will provide a traffic analysis zone (TAZ) map to the City, for use in processing land use data. It is assumed that geographic information systems (GIS) files will be exchanged directly between KOA and the City for this purpose. Land use totals provided by the City, including residential unit totals and commercial/industrial square footage values, will be input into the traffic analysis and analyzed for incremental impacts of new development. Land use data for both existing land use intensities and planned intensities at buildout will be required from the City. Land use data will be used as the input for long range traffic volume forecasts through the traffic analysis model. Related Documents KOA will review relevant traffic and parking studies and documents containing traffic analysis conducted in the area. Other documents, such as the City's general plan updates and the recent downtown and central Santa Ana complete streets plans, will also be reviewed. TASK 4 — REPORT PREPARATION & DEFINITIONS KOA will prepare a traffic study report that will include the following (at a minimum): • Existing Conditions Intersections k Roadway Segments * Transit Service • Project Related Traffic Volumes Accident Data and Safety Evaluation Pedestrian and Bicycle Circulation Traffic Changes Based Upon Circulation System Improvements Trip Generation 10 25E-14 Trip Distribution and Roadway Assignment Ultimate Build -out Scenario, Using the Latest OCTA Traffic Model (OCTAM) to Produce a Long Range Condition Baseline • Traffic Impact Analysis * Existing Conditions (2016) Existing plus Project Conditions (2016) Opening year without Project Conditions Opening year with Project Conditions Future Project Design Year without Project Conditions * Future Project Design Year with Project Conditions Site Access and Circulation • Evaluation of Need of Additional On-site and/Off-site Traffic Controls Mitigation Measures for Intersections/Roadways with Levekof-Service Worse than a Value of °D" Compliance with CEQA Guidelines • Conclusions TASK S -- SUBMITTAL AND REVIEW OF REPORT The traffic study will be submitted to the City for review. Any proper or reasonable revisions will be incorporated into the traffic study in order to be fully responsive to the scope of services. Reasonable revisions include any corrections to the report within the general scope of work, but exclude any traffic data collection or analysis at any locations, except as specified in our proposal. TASK 6 —ATTENDANCE AT MEETINGS In addition to the kick-off meeting under Task I, KOA will attend these meetings: • Three progress meetings with City staff • One Planning Commission General Plan & Zoning Subcommittee Meeting or Study Session • One Planning Commission Hearing • One City Council Hearing 11 25E-15 FEE SCHEDULE (OR) RATES AND CHARGES KOA - FEE SCHEDULE 12 25E-16 ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective this endorsement form as a part of Policy # Issued to Named Insured Countersigned by Authorized Representative 13 25E-17 25E-18 . - 0 • CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: AGREEMENT FOR ENVIRONMENTAL CONSULTING SERVICES WITH DKS ASSOCIATES TO PROVIDE A PARKING STUDY FOR THE METRO EAST MIXED USE OVERLAY DISTRICT EXPANSION PROJECT (STRATEGIC PLAN NO. 3,2 B; 5,3 A, B, C) I L"ITY-MANAGIfER CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on tat Reading CI Ordinance on 2nd Reading n Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement with DKS Associates ("DKS") for environmental consulting services to prepare an innovative, phased, and transitional parking code requirements study with an aggregate amount not to exceed $99,972 for a one-year term expiring on December 31, 2017, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The City Council allocated $100,000 in funds to the Planning and Building Agency in Fiscal Year 2015-2016 for the purposes of procuring environmental consultants to prepare the required technical studies for the Metro East Mixed Use Overlay District expansion project. After conducting an Initial Study in-house, staff identified the need for three distinct technical studies to facilitate the expansion project: an air quality and greenhouse gas emissions study, a traffic impact study, and an innovative and phased parking solutions study. To ensure an equitable procurement process, staff issued three requests for proposals (RFPs) for each of the identified studies. On April 6, 2016, staff issued RFP No. 16-055 to procure a consultant to prepare a study for innovate, phased, and transitional citywide parking code requirement strategies. Four (4) responses were received, and the City selected DKS Associates as the recommended firm with which to enter an agreement based on relevant experience and competitive pricing. The City of Santa Ana requested proposals from planning and environmental consulting firms for preparation a parking study for the Metro East Mixed Use (MEMU) Overlay District expansion project, which will extend the MEMU designation westward along First Street to Grand Avenue. The scope of work includes any and all work efforts related to preparation of an innovative, phased, and transitional citywide parking code strategies study that would initially assist with the 25F-1 Agreement with DKS Associates December 20, 2016 Page 2 Metro East expansion project, including analysis, preparation, community outreach and related compliance with CEQA. Expanding the MEMU Overlay District west along primarily First Street will affect up to 48 vacant, underdeveloped, or abandoned parcels (33.52 acres) currently developed with or entitled to allow a variety of commercial and residential land uses. The expansion of the MEMU Overlay District designation to these properties would allow development of residential and/or mixed-use projects. The expansion project will also amend the MEMU document to update and refine existing allowable land uses and development standards, including parking requirements, within both the new and existing MEMU Overlay District areas. Expansion of the Metro East Overlay District is expected to produce up to 1,888 new residential units (3,776 residents), a maximum of approximately 2,835,000 square feet of new building area, which includes 944,500 square feet of non-residential square footage. The expansion project will create additional housing development opportunities that are consistent with opportunity sites identified in the City's 2014- 2021 Housing Element, Background The City's existing off-street parking requirements are outdated and rely on antiquated traffic and design models for development. The community continually voices strong concerns about parking availability in local neighborhoods, severely constricted street parking supplies, impacts of infill developments to existing area parking capacities, parking enforcement, the costs and procedures associated with street permit parking programs, and the low off-street parking standards contained within the City's newest specific plans/specific development zones. An innovative approach to phasing in off-street parking requirements will be required in tandem with the City's efforts to create and implement transitional zoning opportunities. Traditional approaches to writing new codes may establish regulating plans with allowable land uses/zoning and off-street parking requirements that assume rapid transition of land uses and rapid increases in transit demand in a short amount of time. However, some plan areas may not experience transition overnight; a phased approach to allowing various land uses and phasing the required parking as the area transitions may be more appropriate. DKS Proposal DKS is an experienced consulting firm located in Santa Ana that has prepared technical studies for environmental documents for projects throughout the region, including the Safe Mobility Plan in Santa Ana, as well as various other specific plans and parking studies throughout Orange County and the greater Southern California region. The parking study would be comprised of the following: 1. An inventory of existing land uses in areas identified by the City for potential increases in allowable mixtures of land uses and densities; 25F-2 Agreement with DKS Associates December 20, 2016 Page 3 2. An analysis of the City's existing off-street parking requirements in the identified areas and comparisons against alternative off-street parking requirements commonly used in shared parking analyses, such as those prepared by the Urban Land Institute (ULI) or the Institute of Transportation Engineers (ITE); 3. A proposed off-street parking code for the identified areas that employs an innovative approach to transitional/phased parking requirements as development units and/or square footages, market conditions, transit demand, cycling, walking, and personal automobile use patterns transform over time with changes in land uses, built environments, infrastructure improvements, capital projects, etc.; and 4. Potential impacts to existing City permit parking programs and permit parking areas. Ultimately, the study would provide the City with options and strategies for reducing parking requirements in areas identified for increased development potentials. These reduced parking requirements could be implemented through a variety of means identified in the study, including, for example, reductions that are implemented over time as mixed-use projects are constructed, shared parking agreements in plan areas that span multiple properties or development sites, parking districts, on -street parking permits, and other shared approaches. These strategies would be first incorporated into the Metro East Overlay District expansion project area but could also be applied citywide once the General Plan and Zoning Code updates are completed. 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), Strategy B (Update the City's Zoning Ordinance to be consistent with the updated General Plan and include equitable, innovative, business friendly zoning practices); 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), Strategies A, B, and C (to increase opportunities for mixed-use residential projects, ensure compliance with the City's Housing Opportunity Ordinance, and 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 total cost to prepare an innovative, phased, and transitional parking code requirements study is not to exceed $99,972 for a one-year term, which will impact FY 2016-17 ($77,652) and FY 2017-18 ($22,320), and will expire on December 31, 2017. The one year term Funds for this project are available in the PBA -Air Quality Improvement account (account number 03116510- 62300). 25F-3 Agreement with DKS Associates December 20, 2016 Page 4 Hassan HagKani, AtP -v Executive Director Planning and Building Agency SM:rb sm\RFCA— DKS Parking 12 20 2016 Exhibit: 1. Consultant Agreement APPROVED AS TO FUNDS AND ACCOUNTS: J,4�4\ Tranci'sco Gutierrez — Executive Director Finance & Management Services Agency 25F-4 CONSULTANT AGREEMENT THIS AGREEMENT is made and entered into this 2011' day of December 2016 by and between DKS Associates (DKS) a California Corporation, (hereinafter "Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of environmental consulting services. City desires to have an innovative phased, and transitional parking study performed for the Metro East Mixed Use Overlay District Expansion Project. 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: 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 Ninety Nine Thousand Nine Hundred and Seventy Two Dollars ($99,972.00) during the term of this Agreement. b. Payment by City shall be made within forty-five (45) days following receipt of proper Invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on December 31. 2017, unless terminated earlier in accordance with Section 15, below. The Term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. EXHIBIT 1 25F-5 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 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 Ilmitation, 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. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit C upon execution of this Agreement. b. Business automobile liability insurance, or equivalent form, with a combined 25F-6 single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. G. 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. 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. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless 25F-7 agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 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. g. 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 disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 25F-8 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by 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 Copies to: Executive Director of Planning & Building Agency City of Santa Ana 20 Civic Center Plaza (M-20) P.O. Box 1988 Santa Ana, California 92702 Fax 714-647-5897 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 Consultant: DKS Associates Jim M. Daisa, PE 2401 E. Katella Ave., Suite 425 Anaheim, CA 92806 Tel. 657-284-2620 Fax 510-268-1739 Email - lim.daisata-�.dksassociates.com A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, 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. 25F-9 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 are not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. u 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. 17. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the 25F-10 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. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. (Signature Page Follows) 25F-11 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: Lisa torck Assistant City Attorney RECOMMENDED FOR APPROVAL: Hassan Haghani, AICP Executive Director Planning & Building Agency I 25F-12 CITY OF SANTA ANA DAVID CAVAZOS City Manager CONSULTANT William R. Roudon Principal Tax ID#: 94-2583153 EXHIBIT A SCOPE OF SERVICES Project Understanding and Approach Similar to the City of Santa Ana, many communities across the nation are implementing regulatory plans that establish a framework for vibrant, walkable, mixed-use and/or transit -oriented districts similar to the Metro East Mixed Use (MEMU) Overlay District. These plans are in response to many internal and external factors including economic development, redevelopment of under-utilized land, evolving community lifestyles, improved air quality and reduced greenhouse gas emissions, and shifts in market demand and private sector product delivery, The provision of parking and the management of the public and private parking supply have been critical and evolving topics at every scale of development. The abundance of free parking resulting from conventional zoning codes often conflicts with community goals to create compact, higher -density mixed-use districts where walking, biking, and transit are viable and attractive choices for transportation. In the not so distant past, financing institutions discouraged developers from building projects with less parking than conventional zoning required because of the lack of data supporting the economic viability of mixed-use and transit -oriented development. Those times have changed with the advent of numerous successful examples of vibrant urban development replacing traditional, outmoded, low -Intensity single- use development models. The City of Santa Ana has adopted new progressive parking requirements for development within the MEMU Overlay District. The requirements vary depending on whether the development is stand-alone, or vertically or horizontally mixed. Table 1 provides a comparative summary of the City's conventional and MEMU Overlay District parking requirements. As illustrated in the table, the District's parking code Is substantially different from the requirements for conventional single -use development elsewhere in the City, and provides a robust standard for mixed-use shared parking disallowed under conventional development standards. Despite the paradigm shift in the feasibility and desirability of this now common type of development, many communities still struggle with the transition from traditional parking requirements to more progressive parking requirements—requirements that recognize the reduced demand for parking achievable through compact, mixed-use environments through shared parking, improved walkability, attractive transit service, and modern techniques for managing the public and private parking supply. Concern about transitioning to more progressive parking requirements is a real and legitimate issue resulting from a number of factors including: • Policies, programs, incentives, public investment, and agency commitment that encourage and support private investment in mixed-use districts; Real and perceived perceptions and attitudes about the adequacy of parking to support development; • The lag in demand for ground -floor commercial space in mixed-use developments and the cost -burden created by this market offset; • The overall maturity of the mixed-use development in the district necessary to create a beneficial synergy between land uses and a walkable environment; and The existence, extent, and quality of the public infrastructure (streets, streetscapes, multimodal connectivity) and services (public transportation, public parking, maintenance) to support a reduced parking supply and encourage alternative modes of transportation. The creation of a compact, walkable, mixed-use district takes time and commitment for the many public and private pieces to come together, evolve, and mature. During this transitionary period, it is the responsibility of the public agencies to work collaboratively with the development community to lessen the risks taken by the early catalyst development projects. This can be achieved by. 1) adopting transitionary strategies; 2) allowing flexibility in the initial implementation of the MEMU plan parking requirements; 3) considering code application from a 25F-13 holistic rather than individual development perspective; and 4) active management of public parking and other infrastructure resources by the City of Santa Ana. TABLE 1: COMPARATIVE SUMMARY OF PARKING REQUIREMENTS UNDERCURRENT MUNICIPAL CODE AND MEM U OVERLAY DISTRICT Stand-alone Residential: per Multi -Family Sitetotal:1 covered Stand-alone Residential: current code, prohibited in Prohibited Residential space per unit +1 space 2.25 spaces per unit VillageCenterDistricl per total number of on- (includes 1 assigned space Mixed-use Residential: 2,0-2.25 site bedrooms + guest per unit and guest parking) spaces per unit (includes 1 spaces equal to 25% of assigned space per unit and min, required parking guest parking). See Shared Parking below. Retail and Service 5 spaces per 1,000 square feet of GFA Prohibited Percurrentcode for stand-alone Per current code nonresidential uses. See Shared Parking belowfor - 10 spaces per 1,000 Restaurant squarefeet of GFA and Prohibited mixed-use development Percurrant code open-air dining area Per current code for stand- Office 3spacesper1,000 alone nonresidential uses. 3spaces per 1,000 square feet of GFA SeeShared Parking below square feet of GFA for mixed-use development Prohibited Hotel 1space perguestroom +1 space pereach 10 Per current code. guest rooms +2 spaces Requires CUP, for managers Mixed-use Developments with less than 10 percent of the No allowance Shared Parking No allowance (the gross floor area as commercial: Min. 2.0 spaces per residential (the number of number of parking or livelwork unit Inclusive of guest parking and any parking spaces spaces required foreach use on the same site is nonresidential uses. Mixed-use developments with 10 percent or greater of the required for each determined separately) gross floor area as commercial: requires a parkingstudyto use on the same site is determined establish an adequate parking requirement for the mixture of separately) uses in the proposed development. However, a min. standard of 2.25 spaces per unit Inclusive of guest parking and any nonresidential uses is required Unbundled Parking in Multi- Prohibited Not explicitly addressed In M EMU Overlay Zane standards, Not Applicable Family Assume current code. Developments Parking In -Lieu Allowed aspartofa ParkingDistrictwith Not explicitly addressed in MEMU Overlay Zone standards. Assume current code, Fee imitations -to be used for future public parking servingthedia rict Required of Multi -Family _ Guest parking at a rate of 10 percent of the total required parking spaces shall be set Guest Parking Residential Only. See aside and assigned forthe exclusive use of guests in anydevelopment project within the current code above. MEMU Overlay Zone. 10 25F-14 Notes: Current code: Division 3, Article 15: Off -Street Parking Requirements, Santa Ana Municipal Code GFA =Gross Floor Area C UP = Conditional Use Permit Source: DKS Associates The overall goal of transitionary strategies is a gradual and/or stepwise implementation of new progressive parking requirements as public and private investments are made and as the District matures. Stepwise implementation relies on completion of milestone investment, infrastructure, or service improvements that support the vision and vibrancy of the District. This may require adoption of new temporary or permanent parking codes, or flexibility in applying current code, new temporary or permanent public investment, creation and ongoing support for a parking management district and/or transportation management association, and consideration of public/private partnerships. Some progressive and innovative strategies to considerfor MEMU Overlay District include: • Gradual implementation of Transportation Demand Management (TDM) policies and strategies to reduce overall automobile travel demand in parallel with development of the District, and consideration of forming a Transportation Management Association (TMA) directed by the District's public and private stakeholders; • Formation of a Parking Management District with a goal to support implementation of the District's parking codes and to fund a temporary or permanent public parking system either publically or privately owned and operated; • Consideration of converting certain streets to allow on -street, metered parking, and the use of variable parking pricing of on- and off-street public parking to control utilization and availability; • Allocation of privately built parking to accommodate TDM -related strategies such as reserved car share and carpool/vanpool spaces; and • Allowing private development to provide parking in excess of the District's parking code— initially with gradual reversion to landscaping, public places, or subsequent phases of development. Methodology and Work ProdLICt Task 1: Project Management Underthe Project Management task, DKS' Project Manager(Jim Daisa, PE)and Local Coordinator (Jeff Heald, PE) will: • Oversee the completion of the contracted scope of services and efficient use of the budget within the agreed upon project schedule; • Prepare monthly invoices and written progress reports in compliance with the terms and conditions of the contract; Attend in person, or by phone, bi-monthly consultant/City staff progress meetings; Oversee and manage the work of our team's subconsultant including the review and integration of subconsultant labor and direct costs into our monthly invoices; • Prepare agendas and summary notes for progress meetings, public meetings and other venues and ensure that action responsibilities are completed in a timely manner; and Conduct quality control review of all draft and final deliverables. Task 2: Literature Reviewand Data Collection Purpose: This task will compile best practices in parking requirements and phased development standards as a library of potential strategies and identify relevant lessons learned for refining the recommendations for the MEMU Overlay District. DKS will lead a research effort to obtain, review and summarize policies, code and parking management strategies adopted by other public agencies, as well as literature published and/or disseminated by 25F-15 research institutes and/or professional organizations (e.g., TRB, ITE, ULI). The literature review wilI target information that specifically defines transitional parking strategies and innovative policies as well as development standards for mixed-use and transit- oriented development. DKS will prioritize its review of local agency code within communities in Southern California, the state of California, and nationally in that order. DKS will coordinate with City staff on the collection of mapping and parking related data for the MEMU Overlay District including GIS base map files, past parking surveys, parking supply inventories, relevant conditions of approval and development agreements, parking management districts in other parts of the City, and long range plans for public infrastructure and transit service. DKS may conduct spot parking supply and utilization surveys within the MEMU Overlay District as part of developing the parking scenarios described in Task 3, Task 3: Land Use, and Develop merit Capacity Analysis and Parking Scenario Modeling Purpose: This task is to develop an understanding of the potential mixed-use development capacity of the District and where that development may occur given current and future market trends. This information will be utilized to develop development "scenarios" as input Into a parking supply and demand forecasting model. Task 3A: Land Use and Development Capacity Analysis RRM will review data (to be provided by the City) that is relevant to the area, including mapping information, General Plan, Zoning Code, Metro East Mixed -Use Overlay Zone, and other environmental and planning efforts that have a bearing in the City. In addition, RRM will review existing land uses in the project area for potential increases in allowable mixtures of land uses and densities. Following the review of existing data. RRM will meet with DKS and City of Santa Ana staff to discuss the specifics of the Metro East Mixed -Use Overlay Zone and other relevant planning policies. As part of this meeting, the consultant learn will conduct a field trip with City staff to gain a thorough understanding of the study area. This task will include the following: Review project goals and objectives, scope of work, and project timeline • Identify key project contacts and information exchange • Discuss general concerns and issues to be focused on during the project • Review preliminary areas for potential increases in allowable mixture of land uses and densities as well as likely phasing • Discuss project deliverable design and format Based on the above tasks, RRM will prepare project massing "prototypes" utilizing the existing City zoning standards for up to four (4) sites. A single site will be identified within each of the four MEMU districts (Neighborhood Transitional District, Village Center District, Active Urban District, Office District) and tailored to represent the allowable development. "Prototypes" will illustrate a variety of land uses mixes and horizontal and vertical development configurations. All sites will be selected and confirmed in conjunction with City staff prior, to preparing prototype/case study designs. Case studies will use the Metro East Mixed - Use Overlay Zone to determine development feasibility. Development standards will inform site design in conjunction with building code standards, reconciled with likely intensity/density and neighboring context. DKS and RRM will use the development prototypes to identifythe range of parking supply thatcan be provided within the range of development types, and identify where the prototypes maybedeveloped beyond the initial foursites to create a development scenario within a reasonable planning horizon (e.g., 10 or 20 years).. Task 313: Parking Scenario Modeling DKS will use the scenarios derived from the development capacity analysis in Task 3A to develop a parking supply and demand forecasting model. The supply component of the model will encompass parking supplies reflecting traditional Santa Ana parking requirements and MEMU mixed-use development codes applied to 12 25F-16 existing and identified redevelopment sites created in Task 3A. The demand component of the model will encompass demand rates reflecting traditional Santa Ana development (using ITE parking demand rates for single -use land uses potentially calibrated based on actual parking occupancy data) and MEMU mixed-use development (based on our modified version of the Urban Land Institute Shared Parking methodology that includes reductions for alternative mode use). DKS will run up to three modeling scenarios representing three timeframes and three levels of maturity of the development and surrounding context (including pedestrian, bicycle, transit and roadway infrastructure and services), and prepare maps illustrating the outcome. The modeling will help Identify and justify proposed transitionary and phased parking strategies by identifying the magnitude and location of any parking surplus or deficit, and allow the testing of various public and private parking strategies (e.g., the effect of locating a small public parking lot within the Active Task4: Transitional Parking Strategy Development and Proposed Zoning Code Purpose: This task uses the information from Tasks 2 and 3 to Inform the development of potential transitionary and phased strategies for implementing the parking requirements in the MEMU Overlay District. The menu of strategies will be vetted with City staff, stakeholders and decision -makers and refined into language appropriate for amending the City's zoning code and/or MEMU Overlay District's development standards. DKS, with technical support from RRM, will develop a menu of short-range and long-range transitionary parking strategies categorized by implementing entity, cost, effectiveness, timeframe and sub -district. RRM will prepare up to three development standard graphics to illustrate proposed strategies to the extent the strategies can be illustrated. DKS will provide technical supporting information from our literature review and research, data collection, and parking scenario modeling (from Task 36). Consideration would be given to the citywide applicability of the strategies. The menu of strategies will be initially vetted through City staff with the intent of presenting the strategies in a community/stakeholder forum and subsequently in a Planning Commission or City Council study session. The forum and study session would inform the preparation of potential language for amending the City's zoning code and MEMU Overlay District development standards. Task 5: Meeting Attendance, Deliverables, and Environmental Document Advisement Purpose: This task Identifies the meetings DKS staff will attend as part of this proposal and the level of effort DKS will commit to advising City staff with regards to the preparation of the environmental document for the comprehensive General Plan and zoning code update. Attendance at Meetings: DKS' Project Manager and/or Local Coordinatorwill prepare for, and attend, the following meetings: • Kick-off meeting with City staff One community workshops/stakeholder forum Monthly progress meetings with staff In person and/or by phone One Planning Commission or City Council study session or, alternatively, one Planning Commission General Plan & Zoning Subcommittee meeting One Planning Commission public hearing One City Council public hearing Deliverables: Administrative draft technical report (three hard copies) • Final public draft technical report (three hard copies) • Final public technical report (three hard copies) • Electronic files of all administrative draft, final public draft, and final public technical reports (one CD or USB flash drive) in both Microsoft Word format and editable PDF 13 25F-17 Environmental Document Advisement: DKSonmental Document Advisementative draft, final public drafthe our technical work into environmental documentation and will attend public hearings to receive comments on DKS' technical work to the extent the public hearings are included in the list of meetings above. The time schedule illustrates the DKS team's estimated schedule to complete this study. Consistentwith City staffs expectations, we propose to complete the study in approximately six months. The schedule Identifies weeks when we would deliver draft and final products, and allows for staff review time. The schedule also identifies when we would expect to conduct milestone meetings 'S" e' . ° �r Tasks S Project Management ^Cf . ® ;> _4 ', 0r A, 2 Literature Review and Data Collection 3A Land Use and Development Capacity Analysis 3l3 Parking Scenario Modeling 4 Transitional Parking Strategies arid Proposed Zoning Code S Meetings, Dellverables and Environmental Advisement ` 6'ah, rellveraW (tl-Communi"r roam Fuad Dcfvur„9rle(nl b-Fanwng Comnms;on(C¢y Courff>p.fly Seshtnd off Yneting $- Pr,Jctt Nt]I nr,c�cnt b`-ec--ting' ^Mr D6 wJri, pmd Piunnmg Comm 5*n Public e-usg`",OR 6h'Sr1EReview1'GIP Crmrcl7u4s�c l{caring" 'Note: The schedukl assumes a standard set of deliverables and staff review time before and after all meetings, Standard deliverables include: Meting agenda, draft PowerPoint presentation, meeting notes with action items and entity responsible for action. Standard staff review time is Approximately 2-3 days except for large and complex presentations which may extend to a week. "''Note: Tyre Planning Commission and City Coundl public; hearings are anticipated to Occur Outside of tha schedule for this project. E 25F-18 FEE SCHEDULE (OR) RATES AND CHARGES im Table 2 presents the DKS team's cost proposal. The labor cost proposal is broken down by task and personnel. Our subconsultant (RRM Design Group) is included in the cost proposal as a non -labor expense. However, we have included their proposal to DK5 Associates in the appendix. The travel expenses are for our Project Manager's travel between Sacramento and Santa Ana. Our total labor and expenses cost proposal equals $99,972. TABLE 2: DKS ASSOCIATES COST PROPOSAL 15 25F-19 r r '1 Project Management 4 12 8 24 $ 5,400 2 Literature Review and Data 16 4 24 12 56 S 8,140 Collection Land Use and Development __. ____. 3A ._Ca.pacity Analysis ___ 20 10 30 $ 6,600 38 Parking Scenario Modeling 20 8 50 30 108 $ 15,740 Transttlonal Parking Strategy 4 Development and Proposed 80 10 40 $ 8,750 Zoning Code _ Meeting Attendance 5 Deliverables, and 56 28 16 16 116 5 22,320 Environmental Document Advisement ---� Total Hours mm4 154 68 66 70 12 374 Subtotal Labor Cost $ 980 S 33,110 5 15,640 S 7,920 $ 8,400 $ 900 S 66,9S0 Subconsultant(RRM Design Group): "0,1901 Travel: S 2,432 S 400 Other Direct Costs: $ 99,972 Grand Total: 15 25F-19 ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # _ Issued to this endorsement form as a part of Named Insured 16 25F-20 Countersigned by Authorized Representative REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: APPROVE PURCHASE AGREEMENT FOR BRISTOL STREET IMPROVEMENTS PHASE 3A (PROJECT 136792 NONGENERAL FUND) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED © As Recommended As Amended ❑ Ordinance on t®' Reading Ordinance on 2nd Reading [] Implementing Resolution Q Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a purchase agreement for the purchase price for the full real property acquisition listed below and goodwill (if any) with the following property owner, subject to nonsubstantive changes approved by the City Manager and City Attorney: No. Property Owner Property commonly known as / Acquisition Amount Assessors Parcel Number Type 1221 North Bristol Street & 1 George De Anda 1240 West Washington Avenue Full $1,300,000 APN Nos. 405-274-12: 405-274-13 DISCUSSION Bristol Street is a north -south transportation corridor designated as a major arterial highway in the City's Circulation Element of the General Plan. Improving the 3.9 -mile Bristol Street segment from Warner Avenue to Memory Lane has been a long-term priority that is being constructed in several phases. Improvements include widening the street from two to three lanes in each direction, raised landscape medians, and bike lanes. The City is acquiring properties for the development of Phase 3A, bounded by Civic Center Drive and Washington Avenue. Property acquisitions for this phase are expected to be completed by spring 2017 and construction is anticipated to begin in summer 2017. Property acquisition (Exhibit 1) is necessary to accommodate the improvements and widening for Phase 3A. A purchase offer was made based on the appraised values prepared by a State licensed appraiser and was accepted by the property owner. The purchase price for the acquisition mentioned above is shown in the corresponding agreement (Exhibits 2). 25G-1 Purchase Agreement for Bristol Street Improvement Phase 3A December 20, 2016 Page 2 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). Approval of this item also 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), Strategy C (support business development and job growth along transit corridors through the completion of critical transit plans/projects). ENVIRONMENTAL IMPACT In 1990, City Council approved the Bristol Street Final Environmental Impact Statement/Environmental Impact Report (FEIS/EIR No. 89-01). Due to several minor design modifications in Phase 3A, which lies between Civic Center Drive and Washington Avenue, an Addendum to the FEIS/EIR was prepared and adopted pursuant to the California Environmental Quality Act by City Council on April 7, 2015. FISCAL IMPACT Funds in the amount of $1,300,000 is anticipated to be received by end of December 2016, until such time expenditures will not be incurred until receipt of funds and Finance approval. Funds will be available in the Bristol Street Improvements Project (Account No. 136792) for expenditure in FY 2016/2017 in the Select Street Construction Fund (Account No. 05917661-66100), subject to nonsubstantive changes. Executive Director Public Works Agency FM/EW G/JG/KN/ML APPROVED AS TO FUNDS & ACCOUNTS: It randko Gutierrez Executive Director Finance & Management Services Agency Exhibits: 1. Location Map 2. Agreement for APN Nos. 405-274-12, -13 25G-2 (NTS) MATCHLINE SEE BELOW RIGHT 10TH STREET 9TH STREET CIVIC CENTER DR. -T:�4 L:::[: - UEJEcr PROPEPTIES -'COUIREU PROURrIB ----i L -L WASHINGTON AVENUE EXHIBIT 1 MATCHLINE SEE TOP LEFT SANTA ANA ANA� Tr LE= PURCHASE AGREEMENT FOR OVEMENTS AADTEIOTREET TFGENb' PHASE 3A (PROJECT NO. 36792 DEC. 20, 2016 NONGENERAL FUND) PUELIC WORKS AQUOY (Strategic Plan No. 6, 1, G; and 3, 2, C) 25G-3 PAGE 1OF1 25G-4 PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS THIS AGREEMENT (hereinafter "PSA"), entered into on 2015, between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter "City" or "Buyer"), and, George De Anda (hereinafter "Seller"), regardless of number or gender; THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and subject to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City agrees to purchase from Seller, that certain real property (hereinafter "Said Real Property") legally described as follows: SEE EXHIBIT "A" — Legal Description ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 1221 N. Bristol Street & 1240 W. Washington Avenue, Santa Ana CA) (APN: 405-274-12 and 405.27413) Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1, Conveyance by Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of Commonwealth Title Company at 4100 Newport Place Dr. Suite 120 Newport Beach, California, within sixty (50) days from and after the date on which the City has approved this Agreement. 2. Title to be Conveyed. Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non -monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title except those exceptions shown in Paragraph 14 below, Seller hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as provided above, Seller further agrees that acceptance by City of any deed to said real property, with or without knowledge of any condition, restriction, reservation; exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non -monetary, general or specific, and Including any and all leasehold interests), Ilen, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of Seller to convey title as hereinabove provided. 3, Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the Insured, in the amount of One Million Three Hundred Thousand Dollars ($1,300;000:00) Insuring the title of the City to said real property Is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non -monetary, general or specific, and including any and all leasehold Interests), liens, clouds or defects in title, excepting such specific ones as city may hereinafter expressly agree to take subject to. City shall pay for the entire cost of title insurance. Acceptance by City of any such policy of Insurance, whether such Insurance compiles with the requirements of this paragraph or not, shall not constitute a waiver by City of Its right to such Insurance as is herein required of Seller, nor a waiver by the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure of Seller to convey title or to provide title insurance as required in this Agreement, 446370.1 •.N1365,1 Exhibit 2 25G-5 4. EscrOW. City agrees to open an escrow at the office of Commonwealth Title Company at 4100 Newport Place Dr. Suite 120 Newport Beach, California, (the Escrow Agent) within five (6) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the Joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close within sixty (60) days of the City's execution of this Agreement. If escrow is not in a condition to close by the Close of Escrow, and failure to close is due to unforeseen conditions of title or interest of third parties in the Property that cannot be resolved in Escrow, then buyer may, at Its option, request cancellation of escrow and this Agreement and return of any funds it has deposited Into escrow. Thereupon, all obligations and liabilities of the Parties under this Agreement shall cease and terminate, If no such request is made, Escrow shall be closed as soon as possible thereafter, Buyer shall be entitled to possession of the Property immediately upon close of Escrow. The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating Its acceptance of this Section 4 and of the General Provisions described in Exhibit "B" attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (8) days after delivery of this Agreement, shall carry out Its duties as Escrow Agent hereunder. City agrees to bear and Escrow Agent Is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, re -conveyance fees, document preparation fees, escrow fees and any other closing costs Incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, and Exhibit "B" of the General Provisions of this Agreement. 6. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid In accordance with the provisions of Section 4986 of Ana Revenue and Taxation Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is retarded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City Is recorded and made uncollectible if unpaid by reason of Section 5086 of the Revenue and Taxation Code of the State of California. To the extent that Seller has prepaid any taxes or assessments attributable to the Property; Seller shall be solely responsible for obtaining any refund due thereon from the taxing authority. Upon written request, Buyer shall assist Seller, at Seller's sole cost, in obtaining said refund, if any; however, in no case shall Buyer credit or otherwise pay Seller for that refund, if any, through or outside of Escrow. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City. 6. Payment of Purchgse Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for said real property, and severance damages, the total sum of 090e Million Three Hundred Thousand Dollars ($1,300,000,00). City agrees to deposit said purchase price in escrow with the Escrow Agent within thirty (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after: (a) Conveyance of said real property by Seller to City as hereinabove provided; (b) Acceptance by City of a Grant Deed conveying said real property to City; 4461760,1 - N1565.1 25G-6 (c) Delivery to City of the policy of title insurance as hereinabove provided; (d) Recordation of the Deed conveying sold real property to City. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. a. Buyer and Seller agree that Seller may remain at the real property, and may operate Seller's business thereon, up until 9:00 a.m. on February 1, 2017, and Seller is not obligated to pay Buyer any rental fee for the same. b, By no later than 9;00 a,m, on February 1, 2017, Seller shall have removed all merchandise, inventory, equipment, personal property, and/or removable trade fixtures from the Property, Any merchandise, inventory, equipment, personal property, and/or removable trade fixtures at the Property as of three days after close of escrow shall be deemed abandoned by Seller on that date. c. If Seller does not vacate the Property by the above stated date, the Seller agrees to have the Court immediately Issue a Writ of Possession and/or Assistance, directing the Marshall or Sheriff of Orange County to take physical possession of the Property in favor of the City, Seller waives the right to have the City file an unlawful detainer action, as well as waive the right to any hearing or any requirements for an application by City to obtain the Writ of Possession and/or Assistance and waives any and all rights to object to the Issuance of said Writ If Seller does not vacate the Property by three (3) days after close of escrow. 81 Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of the Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 9. Heirs, Assigns. Successors-In•laterest. This PSA, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective Parties hereto. 10. Time is of the Essenoe, In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shalt be of the essence. 11. Just Compensation. Seller acknowledges and agrees that said purchase price Is just compensation at fair market value for said real property and Includes payment for and severance damages as this transaction was consummated under the threat of the exercise of eminent domain. 12. Acknowledgment of. Full Benefits and Release. A. By execution of this Agreement, Seller, on behalf of himself, his heirs, executors, administrators, successors and assigns, hereby acknowledges that this Agreement provides full payment for the acquisition of the Property by Buyer, and Seller hereby expressly and unconditionally waives any claim for compensation for Injury to the remainder ("severance damages'); precondemnation damages; claims for inverse condemnation; loss or impairment of any "bonus value" attributable to any lease;; any right to repurchase, leaseback from Seller, or receive any financial gain from, the sole of any portion of the Property , or challenge Buyer's adoption of a resolution of necessity, pursuant to Code of Civil Procedure sections 1245.245; any right to receive any notices pursuant to Code of Civil Procedure section 1245.245; any right to enforce any other obligation placed upon Seller pursuant to Code of Civil Procedure sections 1245.245, 1263,025 and 1253.615; any other rights conferred upon Seileres pursuant to Code of Civil Procedure sections 1245,245 and 1263,615 and 1263.025; and 4463760.1 - N 1 565, 1 25G-7 attorney's fees and costs. It being understood that this is a complete and full settlement of all acquisition claims, liabilities, or benefits of any type or nature whatsoever relating to or in connection with the acquisition of the Property by Buyer, with the exception of the claims being compensated separately through the Agreement far Acquisition of Tenant -Seller's Interest In Real Property between Seller and Buyer, The release herein does not impact, effect or waive any claims or obligations set forth in the Agreement for Acquisition of Tenant -Seller's Interest in Real Property .This release shall survive the Close of Escrow, B. This Agreement arose out of Buyer's efforts to acquire the Property through its municipal authority and was under the threat of the exercise of eminent domain pursuant to Title 7 of the Code of Civil Procedure. Seller, on behalf of himself, his heirs, executors, administrators, successors and assigns, hereby fully releases Buyer, its successors, agents, representatives (including attorneys), and assigns, and all other persons and associations, known or unknown, from all claims and causes of action by reason of any damage which has been sustained by Seller, or may be sustained by Seller, as a result of Buyer's efforts to acquire the Property or to construct the works of Improvement thereon, or any preliminary steps thereto, subject to the terms and conditions of this Agreement. This Agreement does not, and shall not be construed to, require Seller to indemnify Buyer for damages which may arise as a result of Buyer's efforts to construct improvements on the Property. C. Seller hereby acknowledges that he either has consulted with legal counsel, or had an opportunity to consult with legal counsel, regarding the provisions of the California Civil Code section 1542, 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 or her settlement with the debtor." Seller acknowledges that he may have sustained damage, loss, costs or expenses which are presently unknown and unsuspected, and such damage, loss, costs or expenses which may have been sustained, may give rise to additional damage, loss, costs or expenses In the future, Nevertheless, Seller hereby acknowledges that this Agreement has been negotiated and agreed upon in light of that situation, and hereby expressly waives any and all rights which Seller may have under California Civil Code Section 1542, or under any statute or common law or equitable principal cf similar effect. This acknowledgment and release shall survive the Close of Escrow. 13, Notice , The mailing address of the City of 'Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California, The mailing address of the Seller is 924 S. Euclid Street, Anaheim, CA 92802. 14. Exceptions. City agrees to accept title to said real property subject to the following. NONE. 15. Entire Agreement. It is mutually agreed that the Parties hereto have herein set forth the whole of their Agreement. Performance of this PSA by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of Said Real Property by City. 16. Hazardous Waste, Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property, Seiler shall not cause or permit 4,I63760,1 - V 1565,1 25G-8 the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (1) defined as a "hazardous waste", "extremely hazardous waste'", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (II) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (ill) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6,95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. 56901 et seq. (42 U.S.C. 56903) or (xl) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. 59601 gtH3c, (42 U.S.C. 89601), 17. Comg„tance With Eg iy ronmental Laws. To the best of Seller's knowledge the Property compiles with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. 18. Indemnity, Seller agrees to indemnify, defend and hold the City harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (il) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, In, or about, to or from, the Property. This Indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business Income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or up to the date this escrow shall close. Seller shall not be responsible foractsor omissions to act post close of this escrow. 19. Contingenncc . It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitute said acceptance and approval. 20. Modification and Amendment. This PSA may not be modified or amended except in writing signed by the Seller and City. 11,167760.1 - N1563.1 25G-9 21. Partial Invalidity. Any provision of this PSA that Is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this PSA shall have no effect, but all the remaining provisions of this PSA shall remain in full force. 22. Captions. Captions and headings in this PSA, including the title of this PSA, are for convenience only and are not to be considered in construing this PSA. 23. Governing Law. This PSA shall be governed by and construed in accordance with the laws of the State of California. 24. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this PSA and the meaning of the provisions hereof. The provisions of this PSA shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language In question. 26. No Third Party Beneficiary, This PSA is intended to benefit only the Parties hereto and no other person or entity has or shall acquire any rights hereunder. 26. Duty To Cooperate Further, Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this PSA, without cost. 27. Applicability of Agreement To Assignees. This PSA shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties to this PSA. 28. Authorltv to Execute Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this PSA, 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. 29. Incor oration of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this PSA. IN 'WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first written above. SELLER: George De Anda CITY/BUYER City of Santa Ana ,1A63760.1 -- N 1565.1 Date: 1 /— // .12016 Date: 25G-10 2016 David Cavazos City Manager ATTEST: Maria D. Huizar City Clerk APPROVED AS TO FORM: Jqb6 M. Fun Assistant City Attorney RECOMMENDED FOR APPROVAL: Fred Mousavipour Executive Director Public Works Agency 4,16P60.1 •-N1565.1 Date: 2016 Date: __ [_ , 2016 Date: 2016 25G-11 EXHIBIT "A" LEGAL DESMPT C N All chat certain read property situated in the County of t)ranae, Staten of Callfomm, descdbed as follows: Lot 32 of Tl e Nri. '-�. , in the Clty of Santa Ara, County Of Drangr, statp of California, ars per Mala flied in Ml{ !cJ. PNi' 1A Of MiSCellaheOUS Maps, 111 the office of the County Recorder of ward Cmp#y, Except the ?southerly forty feet therecif, Assessor's Parcvlal Number: 4051 7012 All that certain real property 59tuated In the County of Orange, State of Californla, clescrihed is foliow5: Lot 31 of In the City of Santa Ana, t::ounty of Orange, ,tate of California, as Shown on a Map thereof recorded In R ULS, F+,rla 14 of Mi:SIalreoun flaps, Record%of _;ild Orange County, Assessor's Parrel NumIben 405-274-13 4 463 160,1 - NI 5 65.1 25G-12 EXHIBIT "B" (Commonwealth Land Title Company) GENERAL ESCROW PROVISIONS All disbursements shall be made by Escrow's check. All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "Close of escrow" means the date on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30 -day month. Recordation of any instruments delivered through this escrow, If necessary or proper in the Issuance of a policy of title insurance called for, is hereby authorized. There shall be no proration of any existing insurance policies in this escrow, You are to furnish a copy of these Instructions, amendments thereto, closing statements and/or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or proceedings for the determination of such conflict, The parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or Incurred by you in connection with, or arising out of this escrow, Including, but without limlting the generality of the foregoing, a suit in interpleader brought by you, In the event you file a suit In Interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10,00 per month, Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to any instructions must be in writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof, These escrow Instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same Instruction. 4463760,1 — N1 Sas. I 25G-13 When recorded, please mail this instrument and tax statements to: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M-30 Santa Ana, California 92701 Free recording, requested by THE CITY OF SANTA ANA: PER GOVERNMENT CODE SECTION 6103, SPACE ABOVE THIS LMR FOR RECORDER'S USE FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, George De Anda Do Hereby Grant to the CITY OF SANTA ANA, a charter City and municipal corporation duly organized under the Constitution and laws of the State of California, for public roadway purposes, all that real property in the City of Santa Ana, Orange County, State of California, located at 1221 N. Bristol Street, Santa Ana, CA 92703,described as follows; SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF; Dated _ //` / � 4463760.I --N1565.1 George Do Anda By, Its. 25G-14 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 On November 11, 2016, before me, Veronica Delgado, a notary public, personally appeared George Ile Anda, who proved to me on the basis of satisfactory evidence to be the persons} whose names) is/are subscribed to the within instrument and acknowledged to me that he/shwVn executed the same in his/ficrhhW, authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)- acted, executed the instrument. I certify tinder PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. ----------------- VERONICA DELGADO Commission S 2095517 q s Notary Public - California CranOa County M Comm. Ex Ives Jan 25, 2010 r WITNESS my hand and official seal. Signature _ U 25G-15 (Seal) EXHIBIT "A" LEGAL, DESRIPTIGN AI that celtaill real pror3erty situated in the: rount+y of orange, State of California, descrIbecl as foilms; Lot 3,? of Ir -dc q?.�, Ul Che t iby of tianta Ana, Cr-unty cP �7r;alige, `;tate of C'alifrrnla, as per Map Ved 111 aroi,� k� Facts ? of Ivli'scelh3neotls Maps, 11"1 tl-le off(r-a+ of the e:_ounity R �Drcler of said Ccwl7ty. Except thr ,outlrerly forty feet thereof. GcS nl''� fol"C?I(Isitih r 1![95-274-1i All that cel'U irl real praPelty ituate(I in tiro Col.lrity of Clralige, State of CadiforrVa, <le:;erilaerl as Pallors: Ot 31 of TI'a+"t f'dCi. 3 , IIl tl)E! flty Of Santa Alli, i:Olillt4y Of Orange, rotate of California, as shorn cin a Map L Lot 31 recorded In + �1 Of MISCellaneOUS Fiala., Recol,CIC Of sa lcl f]I"��Ilsf COtlllty. q Nasar's Parc-PI NLIM13 1% 4.pq 5-274-13.. 4463160.1 N1565.1 25G-16 PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS THIS AGREEMENT (hereinafter "PSA"), entered into on 2016, between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized Linder the Constitution and laws of the State of California (hereinafter "City" or "Buyer"), and, George De Anda (hereinafter "Seller"), regardless of number or gender; THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and subject to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City agrees to purchase from Seller, that certain real property (hereinafter "Said Real Property") legally described as follows: SEE EXHIBIT "A" Legal Description ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 1221 N, Bristol Street & 1240 W. Washington Avenue, Santa Ana CA) (APN: 405-274-12 and 405-274-13) Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conypyance by Sellgr. Seller agrees to convey said real property to City, by Grant Deed, at the office of Commonwealth Title Company at 4100 Newport Place Dr, Suite 120 Newport Beach, California, within sixty (60) days from and after the date on which the City has approved this Agreement. 2. Title to be Con_vev_od. Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non -monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title except those exceptions shown In Paragraph 14 below. Seller hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as provided above, Seller further agrees that acceptance by City of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non -monetary, general or specific, and including any and all leasehold Interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of Seller to convey title as hereinabove provided. 3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount of One Million Three Hundred Thousand Dollars ($1,300,000.00) insuring the title of the City to said real property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non -monetary, general or specific, and including any and all leasehold interests), liens, clouds or defects in title, excepting such specific ones as city may hereinafter expressly agree to take subject to. City shall pay for the entire cost of title insurance. Acceptance by City of any such policy of insurance, whether such Insurance complies with the requirements of this paragraph or not, shall not constitute a waiver by City of its right to such insurance as Is herein required of Seller, nor a waiver by the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure of Seller to convey title or to provide title insurance as required in this Agreement. 4463760.1 --N1$65.1 25G-17 4. Escrow. City agrees to open an escrow at the office of Commonwealth Title Company at 4100 Newport Place Dr, Suite 120 Newport Beach, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of tills Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close within sixty (60) days of the City's execution of tills Agreement. If escrow is not in a condition to close by the Close of Escrow, and failure to close is due to unforeseen conditions of title or interest of third parties in the Property that cannot be resolved in Escrow, then buyer may, at its option, request cancellation of escrow and this Agreement and return of any funds it has deposited Into escrow. Thereupon, all obligations and liabilities of the Parties under this Agreement shall cease and terminate, If no such request is made, Escrow shall be closed as soon as possible thereafter, Buyer shall be entitled to possession of the Property immediately upon close of Escrow. The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Exhibit "B" attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement, shall carry out Its duties as Escrow Agent hereunder, City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265,240. The liability to the Escrow Agent under this Agreement is li nited to performance of the obligations imposed upon It under Section 4, Section 6, and Exhibit "B" of the General Provisions of this Agreement. 6. Propert Ty axes, Such real property taxes, if any, on said roal property for the fiscal year within which said real property Is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Coda of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is recorded which Is allocable to that portion of the fiscal year which begins on the date the dead conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section $086 of the Revenue and Taxation Code of the State of California. To the extent that Seller has prepaid any taxes or assessments attributable to the Property; Seller shall be solely responsible for obtaining any refund due thereon from the taxing authority. Upon written request, Buyer shall assist Seller, at Seller's sole cost, in obtaining said refund, if any;, however, in no case shall Buyer creditor otherwise pay Seller for that refund, If any, through or outside of Escrow. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City. 6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for said real property, and severance damages, the total sum of One Million Three Hundred Thousand Dollars ('$1,300,000.00). City agrees to deposit said purchase price in escrow with the Escrow Agent within thirty (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after: (a) Conveyance of said real property by Seller to City as hereinabove provided; (b) Acceptance by City of a Grant Deed conveying said real property to City; 4463760.1 -^ N I SU r 25G-18 (c) Delivery to City of the policy of title insurance as hereinabove provided; (d) Recordation of the Deed conveying said real property to City. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seiler of all personal property. a. Buyer and Seller agree that Seiler may remain at the real property, and may operate Seller's business thereon, up until 9:00 a.m. on February 1, 2017, and Seller is not obligated to pay Buyer any rental Yee for the same. b. By no later than 9:00 a.m. on February 1, 2017, Seller shall have removed all merchandise, Inventory, equipment, personal property, and/or removable trade fixtures from the Property, Any merchandise, inventory, equipment, personal property, and/or removable trade fixtures at the Property as of three days after close of escrow shall be deemed abandoned by Seller on that date, c. If Seller does not vacate the Property by the above stated date, the Seller agrees to have the Court immediately issue a Writ of Possession and/or Assistance, directing the Marshall or Sheriff of Orange County to take physical possession of the Property in favor of the City. Seller waives the right to have the City file an unlawful detainer action, as well as waive the right to any hearing or any requirements for an application by City to obtain the Writ of Possession and/or Assistance and waives any and all rights to object to the Issuance of said Writ If Seller does not vacate the Property by three (3) days after close of escrow, 8. WgIveLs, The waiver by City of any breach of any covenant or agreement herein contained on the part of the Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein, 9. Heirs, Assigns, Successors -in -Interest, This PSA, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective Parties hereto. 10. Time Is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence, 11. ,lust Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for and severance damages as this transaction was consummated under the threat of the exercise of eminent domain, 11 Acknowledoment of Full Benefits and Release. A. By execution of this Agreement, Seller, on behalf of himself, his heirs, executors, administrators, successors and assigns, hereby acknowledges that this Agreement provides full payment for the acquisition of the Property by Buyer, and Seller hereby expressly and unconditionally waives any claim for compensation for injury to the remainder ("severance damages"); precondemnatlon damages; claims for inverse condemnation; loss or Impairment of any "bonus value" attributable to any lease;, any right to repurchase, leaseback from Seller, or receive any financial gain frorn, the sale of any portion of the Property , or challenge Buyer's adoption of a resolution of necessity, pursuant to Code of Civil Procedure sections 1245.245; any right to receive any notices pursuant to Code of Civil Procedure section 1245.245; any right to enforce any other obligation placed upon Seller pursuant to Code of Civil Procedure sections 1245.245, 1263.025 and 1263.615; any other rights conferred upon Salleres pursuant to Code of Civil Procedure sections 1245.245 and 1263.615 and 1263,026; and 44637% 1 - NIS 65. I 25G-19 attorney's fees and costs. It being understood that this Is a complete and full settlement of all acquisition claims, liabllities, or benefits of any type or nature whatsoever relating to or in connection with the acqulsition of the Property by Buyer, with the exception of the claims being compensated separately through the Agreement forAcquisitlon of Tenant -Seller's Interest in meal Property between Seller and Buyer. The release herein does not impact, effect or waive any claims or obligations set forth in the Agreement for Acquisition of Tenant -Seller's Interest in ileal Property .This release shall survive the Close of Escrow, B, This Agreement arose out of Buyer's efforts to acquire the Property through its municipal authority and was under. the threat, of the exercise of eminent domain pursuant to Title 7 of the Code of Civil Procedure, Seller, on behalf of himself, his heirs, executors, administratem, successors and assigns, hereby fully releases Buyer, its successors, agents, representatives (including attorneys), and assigns, and all other persons and associations, known or unknown, from all claims and causes of action by reason of any damage which has been sustained by Seller, or may be sustained by Seller, as a result of Buyer's efforts to acquire the Property or to construct the works of improvement thereon, or any preliminary stops thereto, subject to the terms and conditions of this Agreement. This Agreement does not, and shall not be construed to, require Seller to indemnify Buyer for damages which may arise as a result of Buyer's efforts to construct Improvements on the Property. C, Seller hereby acknowledges that he either has consulted with legal counsel, or had an opportunity to consult with legal counsel, regarding the provisions of the California Civil Code section 1542, 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 or her settlement with the debtor." Seller acknowledges that he may have sustained damage, loss, costs or expenses which are presently unknown and unsuspeoted, and such damage, loss, costs or expenses which may have been sustained, may give rise to additional damage, loss, costs or expenses in the future, Nevertheless, Seller hereby acknowledges that this Agreement has been negotiated and agreed upon in light of that situation, and hereby expressly waives any and all rights which Seller may have under California Civil Code Section 1542, or under any statute or common law or equitable principal of similar effect. This acknowledgment and release shall survive the Close of Escrow. 13, Notices, The mailing address of the City of Santa Ana is 20 Civic Center Plata, M-36, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California, The mailing address of the Seller is 924 S. Euciid Street, Anaheim, CA 92802. 14, g&qepqj10M. City agrees to accept title to said real property subject to the following: NONE. 16, Entire AgI,eement, It is mutually agreed that the Parties hereto have herein set forth the whole of their Agreement, Performance of this PSA by City shall lay at rest, each, every, and all issue($) that were raised or could have been raised in connection with the acquisition of Said Real Property by City, 16. Hazardous waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property. Seller shall not cause or permit 4463760.1 --N1565,1 25G-20 the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, Grader, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (1) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7,'or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (11) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Coda, Division 20, Chapter 6,95 (1-lazardous Materials Release Resp onIas Plans and inventory), (Iv) defined as a "hazardous substance" under Section 25:281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polyohlorinated biphenyls, (viil) listed under Article 9 or defined as "hazardous" or''extremaly hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 .of the Resource Conservation and Recovery Act, 42 U,S.C, 65901 atM. (42 U.S.G. 56903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U,S,C. 59601 at seq. (42 U.S.C, $9601). 17. Compliance With Cnvironmental Laws. To the best of Seller's knowledge the Property complies With all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water duality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. 18. Lnd2imnily, Seller agrees to indemnify, defend and hold the City harmless frorn and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the Property. This Indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or up to the date this escrow shall close. Seiler shall not be responsible for acts or omissions to act post close of this escrow. 19. Can1ing2M. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein, The execution of these documents and the delivery of same to Escrow Agent constitute said acceptance and approval, 20. Modification and A� Mgndment; This PSA may not be modified or amended except in writing signed by the Seller and City. 4463760.1 - N1565.1 25G-21 21. Partial invalidity;, Any provision of this PSA that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this PSA shall have no effect, but all the remaining provisions of this PSA shall remain in full force, 22. Captions. Captions and headings in this PSA, including the title of this PSA, are for convenience only and are not to be considered in construing this PSA. 23. Governing Law. This PSA shall be governed by and construed in accordance with the laws of the State of California. 24. No Reliance By One Party On The Other, Each party has received independent legal advice from its attorneys with respect to the advisability of executing this PSA and the meaning of the provisions hereof. The provisions of this PSA shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language In question. 28. No Third 2arfy Benaflclary, This PSA is intended to benefit only the Parties hereto and no other person or entity has or shall acquire any rights hereunder. 28. Duty To Cooperate Further, Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this PSA, without cost. 27. Applicability of A rq eement To Assignees. This PSA shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties to this PSA. 28. Authority to Execute Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this PSA, 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. 28. incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be Incorporated as If fully set forth in the body of this ASA. IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first written above. SELLER: George De Anda By: CITY/BUYER City of Santa Ana 4463760.1 --N1565.1 Date: L -......C_.-___.-; 2016 Date: 25G-22 2016 David Cavazos City Manager ATTEST: Date: 2016 Maria D. Huizar City Clerk !&, 1 Date: .2016 JoU M. Funk Assistant City Attorney RECOMMENDED FOR APPROVAL: Fred Mousavipour Executive Director Public Works Agency 4463160.1. -- N 1565,1 Date: 2016 25G-23 EXHIBIT "A„ LEGAL DESR1PTION All EhatceiVih Mal property situated In the County of 0rancle, State of California, elescrlberl as follows: Lot 32 of DmL Nri. 9)1, in the City of Santa Ana, County of Orange, State of California, as per hlap filers In Lr:n < P 7� of Miscellaneous Maps, in the office of the Uluilty R�-*-aorcler of saki Coulrty. Except the Southerly foity feet the reof, Asse,sscw's Parcel Number: 405-274-12 All that certain real property Situated in the County of Orange, State of California, ciescrIbecl as follows: Lot 31 of in the City of Santa ,Ana, CoruMy of Grange, State. of Califomta, as shown on a Map thereof recorded In r of MjS<r�ilalieour Maps,, Rec+3rcis of salol Orange Cnunty, A sHssr7r's_P�4i'+:�I Number, 405-274-13 4463760.1 -- N 1565.1 25G-24 EXHIBIT "B" (Commonwealth Land Title Company) GENERAL ESCROW PROVISIONS All disbursements shall be made by Escrow's check, All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business In the State of California and May be transferred to any other general escrow account or accounts. The expression "close of escrow" means the date on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30 -day month. Recordation of 'any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized. There shall be no proration of any existing insurance policies in this escrow. You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers aridlor the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims With respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by you in connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by you, In the event you file a suit In interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10,00 per month. Time is declared to be the essence of these instructions, If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to any instructions must be In writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. 4463760.1 -- N I SGA I 25G-25 25G-26 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: RESTATEMENT AND AMENDED OF AGREEMENT WITH PUBLIC AGENCY RETIREMENT SERVICES TO PROVIDE A TRUST PLAN FOR A LIMITED NUMBER RETIRED POLICE OFFICERS ASSOCIATION MEMBERS {STRATEGIC PLAN NO. 7,4) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: p .. 20171 co 177 As Recommended E] As Amended D Ordinance on 18' Reading ® Ordinance on 2nd Reading ❑ Implementing Resolution El Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to restate and amend the agreement with Public Agency Retirement Services, establishing a trust to provide supplemental retirement benefits to a limited number of former Police Officers Association members for an extended period in an amount not to exceed $125,000 per year, subject to non -substantive changes approved by the City Manager and City Attorney,. DISCUSSION On April 18, 2011, the City Council authorized the establishment of a trust establishing a Supplementary Retirement Plan for 25 Police Officers Association (POA) retirees administered through Public Agency Retirement Services (PARS). This trust was the result of negotiations between the POA and City. POA, at the request of the City, agreed to extend the Memorandum of Understanding (MOU and defer salary increases scheduled for July 1, 2009 and January 1, 2010. However, it was agreed that members of the POA who had anticipated retiring during the Extension would receive the salary increases per the original schedule and, in exchange, would participate in an unpaid furlough program equivalent to the monetary value of the increases they received. In August 2010, the City and the POA reached tentative agreement on another contract extension, which also deferred salary increases except to those employees with a stated intention to retire during the term of the agreement, in exchange for participation in an unpaid furlough program. Before Council approved the second contract extension and 12 months after the first employee retired under the 2010-11 extension, the California Public Employees Retirement System (CalPERS) notified the City that this provision was not consistent with the principles concerning the awarding of pensions to public employees. Therefore, the City and POA negotiated an 25H-1 Agreement with Public Agency Retirement Services to Provide a Trust Plan for a Limited Number of Police Officers Association Members December 20, 2016 Page 2 alternate method of providing a stipend to eligible employees that will reflect the actual salary they would have received upon retirement, and will comply with the agreement made by the City during the contract extension negotiations. Staff is requesting renewal restatement and amendment of the agreement with PARS to clarify that the term of the agreement is ongoing until termination or until the last beneficiary or their eligible heirs expire. This restatement and amendment allows for continued administration and funding of this trust for the duration of the retirees' lives. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #7 - Team Santa Ana, Objective #4 (Establish employee compensation that attracts and retains a highly qualified workforce). FISCAL IMPACT The cost to fund the trust is $128,356.92 for 2016. The annual ongoing cost of the trust was originally estimated to be $94,672 and the cost of the trust will diminish as the retirees expire. Funds are budgeted in the 2016-17 Personnel Service Department budget account no. 08009051-62300. I Edward S. Raya Executive Director Personnel Services APPROVED AS TO FUNDS AND ACCOUNTS: Francis Gutierrez SP Executive Director Finance & Management Services Agency Exhibits: 1. Restated and amended agreement for administrative services 2. March 21, 2011 POA Retirement Issue sheet 3. Resolution No. 2011-024 25H-2 RESTATED AND AMENDED AGREEMENT FOR ADMINISTRATIVE SERVICES This restated and amended agreement ("Agreement") is made this 20" day of December, 2016, between Phase II Systems, a corporation organized and existing under the laws of the State of California, doing business as Public Agency Retirement Services (hereinafter "PARS") and the City of Santa Ana ("Agency"). WHEREAS, Agency entered into an agreement for administrative services with PARS dated June 7, 2011 to provide a defined benefit supplemental retirement plan ("original agreement") to certain eligible retirees. The term of the original agreement was April 18, 2011 ending April 17, 2016 with a provision that the agreement will continue unchanged for successive twelve-month periods following the original term unless terminated. WHEREAS, Agency and PARS want to clarify that the term of the Agreement is ongoing unless terminated or until the last beneficiary or their eligible heirs expire. WHEREAS, Agency is desirous of c o n t i n u i n g t o retain PARS, as Trust Administrator to the PARS Trust, to provide administrative and consulting services with respect to the qualified City of Santa Ana PARS Supplementary Retirement Plan (the "Plan"). NOW THEREFORE, the parties agree: 1. Services, PARS will provide the services pertaining to the Plan as described in the exhibit attached hereto as "Exhibit IA" ("Services") in a timely manner, subject to the further provisions of this Agreement, 2. Fees for Services. PARS will be compensated for performance of the Services as described in the exhibit attached hereto as "Exhibit IB", Payment Terms, Payment for the Services will be remitted directly from Plan assets unless otherwise stated in Exhibit 113, in the event that the Agency chooses to make payment directly to PARS, it shall be the responsibility of the Agency to remit payment directly to PARS based upon an invoice prepared by PARS and delivered to the Agency. lfpayment is not received by PARS within thirty (30) days of the invoice delivery date, the balance due shall bear interest at the rate of 1.5% per month. If payment is not received from the Agency within sixty (60) days of the invoice delivery date, payment plus accrued interest will be remitted directly from Plan assets, unless PARS has previously received written communication disputing the subject invoice that is signed by a duly authorized representative of the Agency. 4. Fees for Services Beyond Scope. Fees for services beyond those specified in this Agreement will be billed to the Agency at the rates indicated in the PARS standard fee schedule in effect at the time the services are provided and shall be payable as described in Section 3 of this Agreement. Before any such services are performed, PARS will provide the Agency with written notice of the subject services, terms, and an estimate of the fees therefore, 5, Information Furnished to PARS. PARS will provide the Services contingent upon the Agency's providing PARS the information specified in the exhibit attached hereto as "Exhibit 1C"("Data"). it shall be the responsibility of the Agency to certify the accuracy, content and completeness of the Data so that PARS may rely on such information without further audit. It shall further be the responsibility of the Agency to deliver the Data to PARS in such a manner Page 1 r that allows for a reasonable amount of time For the Services to be performed. Unless specified in Exhibit IA, PARS shall be under no duty to question Data received from the Agency, to compute contributions made to the Plan, to determine or inquire whether contributions are adequate to meet and discharge liabilities under the Plan, or to determine or to inquire whether contributions made to the Plan are in compliance with the Plan or applicable law. In addition, PARS shall not be liable for non-performance of Services if such non-performance is caused by or results from erroneous and/or late delivery of Data from the Agency, In the event that the Agency fails to provide Data in a complete, accurate and timely manner and pursuant to the specifications in Exhibit 1C, PARS reserves the right, notwithstanding the further provisions of this Agreement, to terminate this Agreement upon no less than ninety (90) days written notice to the Agency, 6. Suspension of Contributions. In the event contributions are suspended, either temporarily or permanently, prior to the complete discharge of PARS' obligations under this Agreement, PARS reserves the right to bill the Agency Par Services under this Agreement at the rates indicated in PARS' standard fee schedule in effect at the time the services are provided, subject to the terms established in Section 3 of this Agreement. Before any such services are performed, PARS will provide the Agency with written notice of the subject services, terms, and an estimate of the fees therefore. 7, Records. During the term of this Agreement, and for a period of five (S) years after termination of this Agreement, PARS shall provide duly authorized representatives of the Agency access to all records and material relating to calculation of PARS' fees under this Agreement. Such access shall include the right to inspect, audit and reproduce such records and material and to verify reports furnished in compliance with the provisions of this Agreement. All information so obtained shall be accorded confidential treatment as provided under applicable law. 8. Confidentiality. Without the Agency's consent, PARS shall not disclose any information relating to the Plan except to duly authorized officials of the Agency and to parties retained by PARS to perform specific services within this Agreement. The Agency shall not disclose any information relating to the Plan to individuals not employed by the Agency without the prior written consent of PARS, except as such disclosures may be required by applicable law. 9. Independent Contractor. PARS is and at all times hereunder shall be an independent contractor. As such, neither the Agency nor any of its officers, employees or agents shall have the power to control the conduct of PARS, its officers, employees or agents, except as specifically set forth and provided for herein. PARS shall pay all wages, salaries and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, such as social security, income tax withholding, unemployment compensation, worker's compensation, and similar matters. 10, Indemnification. PARS and Agency hereby indemnify each other and hold the other harmless, including their respective officers, directors, employees, agents and attorneys, from any claim, loss, demand, liability, or expense, including reasonable attorneys' fees and costs, incurred by the other as a consequence of PARS' or Agency's, as the case may be, acts, errors, or omissions with respect to the performance of their respective duties hereunder. Page 2 25H-4 11. Compliance with Applicable Law. The Agency shall observe and comply with federal, state and local laws in effect when this Agreement is executed, or which may come into effect during the term of this Agreement, regarding the administration of the Plan. PARS shall observe and comply with federal, state and local laws in effect when this Agreement is executed, or which may come into effect during the term of this Agreement, regarding Plan administrative services provided under this Agreement. 12. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. in the event any party institutes legal proceedings to enforce or interpret this Agreement, venue and jurisdiction shall be in any state court of competent jurisdiction. 13. Force Majeure. When satisfactory evidence of a cause beyond a party's control is presented to the other party, and nonperformance was unforeseeable, beyond the control and not due to the fault of the party not performing, a party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by such cause, including but not limited to: any incidence of fire, flood, acts of God, acts of terrorism or war, commandeering of material, products, plants or facilities by the federal, state or local government, or a material act or omission by the other party. 14. Ownership of Reports and Documents. The originals of all letters, documents, reports, and data produced for the purposes of this Agreement shall be delivered to, and become the property of the Agency. Copies may be made for PARS but shall not be furnished to others without written authorization from Agency. 15, Designees. The Plan Administrator of the Agency, or their designee, shall have the authority to act for and exercise any of the rights of the Agency as set forth in this Agreement, subsequent to and in accordance with the written authority granted by the Governing Body of the Agency, a copy of which writing shall be delivered to PARS. Any officer of PARS, or his or her designees, shall have the authority to act for and exercise any of the rights of PARS as set forth in this Agreement. 16. Notices. All notices hereunder and communications regarding the interpretation of the terms of this Agreement, or changes thereto, shall be effected by delivery of the notices in person or by depositing the notices in the U.S, mail, registered or certified mail, return receipt requested, postage prepaid and addressed as follows: (A) To PARS: PARS; 4350 Von Karman Avenue, Suite 100, Newport Beach, CA 92660; Attention: President (B) To Agency: City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92701; Attention: Executive Director of Personnel Services Notices shall be deemed given on the date received by the addressee. 17. Term of Agreement. This Agreement shall remain in effect for the period that began April 18, 2011 for twelve (12) month periods thereafter unless terminated or until the last beneficiary or their eligible heirs expire (Term). This Agreement will continue unchanged for the duration of the term unless either parry gives written notice to the other party of the intent to terminate prior to ninety (90) days before the end of the twelve (12) month period. Page 3 25H-5 1 &. Amendment. This Agreement may not be amended orally, but only by a written instrument executed by the parties hereto. 19. Entire Agreement. This Agreement, including exhibits, contains the entire understanding of the parties with respect to the subject matter set forth in this Agreement. In the event a conflict arises between the parties with respect to any term, condition or provision of this Agreement, the remaining terms, conditions and provisions shall remain in full force and legal effect. No waiver of any term or condition of this Agreement by any party shall be construed by the other as a continuing waiver of such term or condition. 20. Attorney's Fees. In the event any action is taken by a party hereto to enforce the terms of this Agreement, the prevailing party therein shall be entitled to receive its reasonable attorney's fees. 21. Counterparts. This Agreement may be executed in any number of counterparts, and in that event, each counterpart shall be deemed a complete original and be enforceable without reference to any other counterpart. 22. Headings. headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions. 23. Effective Date. This Agreement shall be effective on the date first above written, and also shall be the date the Agreement is executed, AGENCY: BY: TITLE: DATE: PARS: BY: TITLE: DATE: RECOMMENDED FOR APPROVAL: Ed Raya Executive Director of Personnel Services Page 4 25H-6 ATTEST: Maria D, Huizar City Cleric APPROVED AS TO FORM: SOMA R, CARVALHO City Attorney By: A., Laura A. Rossini Senior Assistant City Attorney EXHIBIT IA SERVICES PARS will provide the following services for the City of Santa Ana: 1. Plan Consultation Services: (A) Meeting with Agency personnel to discuss the impact to the Agency of implementing a Plan; (B) If appropriate, completing a fiscal analysis, based on data and assumptions provided by Agency, to determine the fiscal feasibility of a Plan; (C) Meeting with Agency personnel to discuss the fiscal analysis and receive feedback on the analysis, data, and assumptions made; (D) Making appropriate revisions to the fiscal analysis as directed by Agency. 2. Plan Installation Services: (A) Meeting with appropriate Agency personnel to discuss plan provlslOns, implementation timelines, benefit communication strategies, data reporting and contribution submission requirements; (B) Providing the necessary analysis and advisory services to finalize these elements of the Plan; (C) Providing the documentation needed to establish the Plan for review by Agency legal counsel. 3. Plan Administration Set -vices: (A) Monitoring the receipt of Plan contributions made by the Agency to the trustee of the PARS Trust Program ("Trustee"), based upon information received from the Agency and the Trustee; (B) Performing periodic accounting of Plan assets, including the allocation of employer contributions, distributions, investment activity and expenses (if applicable), based upon information received from the Agency and/or Trustee; (C) Acting as ongoing liaison between the Participant and the Agency in regard to distribution payments, which shalt include use by the Participants of toll-free telephone communication to PARS; (D) Producing benefit illustrations and processing enrollments; (E) Coordinating the processing of Participant distribution payments pursuant to authorized written Agency certification of distribution eligibility, authorized direction by the Agency, and the provisions of the Plan, and, to the extent possible, based upon Agency - provided Data; (F) Directing Trustee to liquidate Plan assets (if necessary) and make Participant distribution payments, and producing required tax filings regarding said distribution payments; Page 5 25H-7 (G) Notifying the Trustee of the amount of Plan assets available for further investment and management, or, the amount of Plan assets necessary to be liquidated in order to fund Participant distribution payments; (H) Coordinating actions with the Trustee as directed by the Plan Administrator within the scope this Agreement; (1) Preparing and submitting a report of Plan activity to the Agency, unless directed by the Agency otherwise; (J) Coordinating and selecting of a licensed actuary to perform actuarial valuation, if required, on a periodic basis to comply with state and federal laws (the actuarial certification fee for which shall be paid by the Agency); (K)Preparing and submitting the Annual Report of Financial Transactions to the California State Controller, as required by law, for the PARS Trust Program, including the required certified audit of the PARS Trust. 4. Plan Compliance Services: Coordinating and preparing changes to the Trust, Plan and other associated legal documents required by federal and state agencies to maintain the Plan in compliance, for review by Agency legal counsel. 5. PARS is not licensed to provide and does not offer tax, accounting, legal, investment or actuarial advice. In providing the services specified above, PARS will retain qualified professional service providers at its cost as it deems necessary if the service lies outside its area of expertise. 6. Any analysis provided by PARS is subject to the receipt of accurate information and assumptions as may be provided by Agency. The Agency is responsible for integrating the PARS analysis into any Agency budgetary analysis or decision-making processes. The fiscal projections in the PARS analysis are dependent upon future experience conforming to the assumptions used and the results will be altered to the extent that future experience deviates from these assumptions. It is certain that actual experience will not conform exactly to the assumptions used in the analysis. Page 6 25H-8 EXHIBIT IB FEES FOR SERVICES PARS will be compensated for performance of Services, as described in Exhibit IA based upon the following schedule: Upon implementation of the Plan associated with this Agreement, the Agency agrees to pay: (A) An ongoing administration fee equal to five and one-half percent (5.50%u) of all contributions made by the Agency on behalf of participants in the subject Plan. Fees will be billed to the Trustee as contributions are made by the Agency, and it will be the responsibility of the Trustee to pay those fees from the assets of the Plan. These fees are exclusive of Trustee and investment management fees, which are based on the standard fees charged by the Trustee. (B) A fee equal to actuarial expenses, if any, charged to PARS by an outside contractor for an actuarial valuation of the Agency's Plan ("Actuarial Valuation Fee"). (C) A fee equal to the stated IRS application fees and legal fees related to any ongoing federal and/or state required Plan compliance changes. Such fees will not be charged to the Agency without prior authorization by the Plan Administrator. Page 7 25H-9 EXHIBIT IC DATA REQUIREMENTS PARS will provide the Services under this Agreement contingent upon recelvrng the following information; 1. Participant Data (provided by Agency): (A)Participant's Legal Name (B) Participant's Position (C) Participant's Address (D) Participant's Birth Date (E) Participant's Hire Date (F) Participant's Contract Salary (G) Years of Agency Service (H)Retirement Date 2. Executed Legal Documents (provided by Agency): (A) Certified Resolution (B) Adoption Agreement (C) Plan Document (D) Trustee Investment Forms 3. Completed Funding Documents (provided by Agency): (A) Authorization to Pay Benefits Form (B) Funding of PARS Supplementary Retirement Plan Form 4. Completed Enrollment Forms (timely submitted by Participant): (A) Correction Form (B) Enrollment Form (C) Beneficiary Designation Form (D) Tax Withholding Request Form (E) Letter of Resignation S. Other information pertinent to the Services as reasonably requested by PARS. Page 8 25H-10 POA RETIREMENT ISSUE March 21, 2011 BACKGROUND; In June 2009 the City and POA agreed to a contract extension which deferred scheduled pay raises of 4% and 2.5%. In exchange for deferral of these scheduled increases, the City agreed that any employee who retired prior to 2011 would receive the scheduled pay increases, in exchange for the 4% and 2.5% those employees would take unpaid furlough hours off, equivalent in the value to the salary increases. The City submitted the MDU to CaIPERS and reported salaries In accordance with the MOU. The first POA retirement under the MOU provisions occurred in October 2009. Subsequently, 24 other POA employees (20 sworn and s non -sworn) retired without incident. in October 2010, CoIPERS contacted the City and advised there might be a problem with reportable compensation. in December 2010, PERS finally "ruled" that the 4% and 2.5% were not considered "reportable compensation." In December 2010, POA requested that these 25 employees "be made whole" by the City. in February 2011, POA requested the City pay POA $1,963,251 to create a trust, which POA would administer. STEPS TAKEN; The City asked PARS (Public Agency Retirement Services) to provide an actuarial study on the casts of such a proposal, which would be paid over a 20 -year period. Several scenarios were evaluated, including POA administering the trust itself. This scenario would require the City to provide a lump sum to POA and, therefore, it was eliminated as an option. This left the following options for consideration; Scenario 1 plan administered by PARS, includes 2% COLA and no survivor benefits.- ✓ Approximately $1,969,03.1 or approximately $94,671 per year (2011= $126,087) ✓ This scenario assumes a $5,000 all-inclusive annual administrative fee Scenario 2 plan administered by the City, includes 2% COLA and no survivor benefits; ✓ Approximately 1,989,031 or approximately $114,671 per year (2011 = $156,087 ✓ This scenario assumes a startup fee of $10,000, and ongoing annual costs of $20,000 NOTE., Cost of 4916 and 2.5% increases through CaIPERS for the 25 retirees had been gstimated to be $1,635,000 amortized over 30 years. PERS revised tills estimate to be $2,269,85. RECOMMENDATION; fi+ Contract with PARS (Public Agency Retirement Services) to create and administer a trust, on a "Pay -os -you -go" basis, in an estimated annual amount of $94,671. First year costs are estimated to be $126,087. w 25H-11 25H-12 RESOLUTION NO. 2011-024 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE IMPLEMENTATION OF A SUPPLEMENTARY RETIREMENT PLAN FOR TWENTY-FIVE (25) POLICE OFFICERS ASSOCIATION RETIREES, DESIGNATING PUBLIC AGENCY RETIREMENT SERVICES AS THE TRUST ADMINISTRATOR AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE RETIREMENT PLAN AND TRUST DOCUMENTS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Public Employees' Retirement Law (PERL) permits the participation of public agencies and their employees in the California Public Employees' Retirement System (CaIPERS) by the execution of a contract, and sets forth the procedure by which said public agencies may amend and supplement such contract; and B. During contract negotiations between the City and the Santa Ana Police Officers Association (POA) for fiscal year 2010-2011, it was agreed by the POA to defer salary increases scheduled for July 1, 2009 and January 1, 2010, except that members of the Association who stated their intention to retire from employment with the City during the term of the Extension would receive salary increases per the original schedule that would qualify for calculation in their retirement formulas and, in exchange for said salary increases, said members would participate in an unpaid furlough program equated to the monetary value of the received increases. Twenty-five (25) members of the Association timely stated their intention to retire, received the salary increases and participated in the furlough program; and C. The Public Agency Retirement System (PARS) is a professional entity that provides supplemental retirement plans to public employees and has agreed to develop a Supplementary Retirement Plan and Trust ("the PARS Trust Supplementary Retirement Plan") for the above -referenced twenty-five (25) POA retirees, supplementing the CaIPERS retirement benefits and qualifying under the relevant sections of the Internal Revenue Code and the California Government Code. r Resolution No, 2011-024 Page 1 of 3 25H-14 Section 2. The City Council of the City of Santa Ana hereby authorizes the implementation of the PARS Trust Supplementary Retirement Plan for said twenty-five (25) POA retirees, as part of the City's Retirement Program. Section 3. The City Council hereby appoints PARS Trust as Trust Administrator and Record keeper for the Plan. Section 4. The City Council hereby authorizes the transfer of funds to a financial institution as agreed upon by PARS and the Plan Administrator as soon as administratively feasible. Section 5. The City Manager and the Executive Director of Personnel Services are hereby authorized to execute and submit the Administrative Services Agreement, Trust document and any other documents necessary to implement the PARS Trust Supplementary Retirement Plan for said twenty-five (25) POA retirees, on behalf of the City. Section 6, The City Council hereby appoints the Executive Director of Personnel Services, or her designee, as the City's Plan Administrator for the Plan. Section 7, The City's Plan Administrator is hereby authorized to implement the Plan and to take additional actions as necessary to maintain the City's participation in PARS, maintain compliance with any regulations regarding the Plan, and to administer the PARS Trust Supplementary Retirement Plan for said twenty-five (25) POA retirees, on behalf of the City. Section 8. If the City's Plan Administrator finds that the PARS Trust Supplementary Retirement Plan for said twenty-five (25) POA retirees must be limited under Section 415 of the Internal Revenue Code, then the Plan Administrator will implement replacement benefit programs at no additional cost to the City. Section 9. This Resolution shall take effect immediately upon its adoption. Resolution No. 2011-024 Page 2 of 3 25H-15 25H-16 ADOPTED this 18th day of April 2011. APPROVED AS TO FORM: City Attorney's Office Aoselih Straka Interim City Attorney AYES: Councilmembers: NOES: Councilmembers: C • U Miguel A. Pulido pp Nt e(1de Mayor Alvarez, Benavldes, Bustamante, Martinez (4) 1►GLIf 1 ABSTAIN: Councilmembers: None (0) NOT PRESENT: Councilmembers: Pulido. Sarmiento. Tinaiero (3) CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2011-024 to be the original resolution adopted by the City Council of the City of Santa Ana on April 18, 2011. Date: �Y a'y"y C' )D, & "s ' Clerk of the Council City of Santa Ana Resolution No. 2011-024 Page 3 of 3 25H-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: APPROVE TENANT -INTEREST PURCHASE AGREEMENT FOR BRISTOL STREET IMPROVEMENTS PHASE 4 (PROJECT NO. 116741, NONGENERAL FUND) (STRATEGIC PLAN NOS. 6, 1G; 3,2C) CITY MANAG RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: :-•e• :-p El As Recommended M As Amended ® Ordinance on 151 Reading El Ordinance on 2nd Reading CJ Implementing Resolution Set Public Hearing For,,_ - CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a purchase agreement of Tenant Interest in the property listed below and goodwill (if any) with the following property owner, subject to nonsubstantive changes approved by the City Manager and City Attorney: No. Property Owner Property commonly Amount known as / location Botanica Sol 1 Mike Otero 2123 South Bristol Street $31,335 (APN Nos. 015-194-20, -21, -22) DISCUSSION Bristol Street is a north -south transportation facility which is designated as a major arterial highway in the City's Circulation Element of the General Plan. Improving the 3.9 -mile Bristol Street segment from Warner Avenue to Memory Lane has been a long-term priority project that is being constructed in several phases. Improvements include widening the street from two to three lanes in each direction, raised landscape medians, and adding bike lanes. The City is acquiring properties for the development of Phase 4, bounded by Warner Avenue and Saint Andrew Place. Property acquisitions for this phase are expected to be completed by spring 2017, and construction is anticipated to begin in summer 2017. The acquisition of the tenant interest (Exhibit 1) is necessary to accommodate the improvements and widening for Phase 4. The above listed tenant agreed to quitclaim all tenant interest, including loss of goodwill, for the listed purchase price. The purchase price, as listed in the corresponding agreement (Exhibit 2), was based on the appraised value prepared by a State - licensed appraiser, and the offer was accepted by the respective tenant -seller. 251-1 Tenant Interest Purchase Agreement for Bristol Street Improvement Phase 4 December 20, 2016 Page 2 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). Approval of this item also 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), Strategy C (support business development and job growth along transit corridors through the completion of critical transit plans/projects). ENVIRONMENTAL IMPACT In 1990, City Council approved the Bristol Street Final Environmental Impact Statement/Environmental impact Report (FEIS/EiR No. 89-01). Due to several minor design modifications in Phase 4, which lies between Warner Avenue and St. Andrew Place, an Addendum to the FEIS/EIR was prepared and adopted pursuant to the California Environmental Quality Act by City Council on April 7, 2015. FISCAL IMPACT Funds in the amount of $31,335 are available in the Bristol Street Improvements Project No. 116741 for expenditure in FY 2016-2017, Measure M2 Street Construction Fund (Account No. 03217663-66100), subject to nonsubstantive changes. F ed Mousavipour Executive Director Public Works Agency FM/EWG/JG/ML AS TO FUNDS & ACCOUNTS: Franciscd Gutierrez_ Executive Director Finance & Management Services Agency Exhibits: 1. Location Map 2. Agreement for APN Nos. 015-194-20, -21, -22 251-2 MATCHLINE SEE BELOW RIGHT 1 r r i -.T..._1.... ---..7---f--7--- I I 14De-sae•17 j I I I ST GEFRUDE PL 1 1408471Al CCiL..1..1.-1.. SANTA ANA PUPUC WORKS AGENCY I -SUO.IECT PPDPFRTY -ACOUIREO PPOPERTIES 1 1 I I ST ANDREW PL CAR PL '-T---1---1 j-• --I--�..�-- I I F- I GLENWOOD PL J m : : 9 ,...,• I S I I I I al i I I CAMDEN PL Y --r �-f -�- T---�--- �ST ANNE PL i n j i i i T T TN"A I 9 EXHIBIT 1 MATCHLINE SEE TOP LEFT PURCHASE AGREEMENT FOR CITY COUNCIL BRISTOL STREET IMPROVEMENTS AGENDA DATE: PHASE 4 (PROJECT NO. 116741 DEC. 20, 2016 NONGENERAL FUND) (Strategic Plan No. 8, 1, G; and 3, 2, C) 251-3 PAGE 1 OF 1 1 I 016.194-0tr------ I' 408471-17 i ILL! � :Dis-ian-23: 015-194.26, Co 111 p15 -09d-25 i4 I b15.19&28I' ,..� ��----.-4 408.471 -OB •D15 -194-3q ' +-- I I I I WARNER AVENUE SANTA ANA PUPUC WORKS AGENCY I -SUO.IECT PPDPFRTY -ACOUIREO PPOPERTIES 1 1 I I ST ANDREW PL CAR PL '-T---1---1 j-• --I--�..�-- I I F- I GLENWOOD PL J m : : 9 ,...,• I S I I I I al i I I CAMDEN PL Y --r �-f -�- T---�--- �ST ANNE PL i n j i i i T T TN"A I 9 EXHIBIT 1 MATCHLINE SEE TOP LEFT PURCHASE AGREEMENT FOR CITY COUNCIL BRISTOL STREET IMPROVEMENTS AGENDA DATE: PHASE 4 (PROJECT NO. 116741 DEC. 20, 2016 NONGENERAL FUND) (Strategic Plan No. 8, 1, G; and 3, 2, C) 251-3 PAGE 1 OF 1 251-4 SELL ALL (NO SALVAGE) Project: Bristol Street I nprovement Project —Phase 4 APN: 015-194-22 Tenant -Seller: Mike Otero dba Botanica Sol AGREEMENT FOR ACQUISITION OF TENANT -SELLER'S INTEREST IN REAL PROPERTY THIS AGREEMENT (".Agreement") is entered into as of this clay of , 2016, by and between THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California ("Buyer"), and MIKE OTERO DBA BOTANICA SOL ("Tenant -Seller") for the acquisition by Buyer of certain interests in real property described herein. IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS: 1. AGREEMENT. Tenant-Soller agrees to sell and convey to Buyer, and Buyer agrees to purchase and, acquire from Tenant -Seller, upon the terms and for the consideration set forth in this Agreement, (a) all right, title and interest, in and to certain improvements, including fixtures and equipment (collectively "Improvements") located in, on, or affixed in any manner to the premises Imowu and numbered as 2123 S. Bristol Street, Santa Ana, California ("Premises") which Premises are part of that real property described in Exhibit A attached hereto, located in the City of Santa Ana, Orange County, California ("Property"), and (b) any tenancy interest of Tenant -Seller ("Tenancy Interest") in and to the Premises and the Property. The Improvernents to be conveyed by Tenant -Seller are a part of the Premises, and, specifically include, without limitation, the items described in the list of Improvemonts Pertaining to the Realty attached hereto as Exhibit B. 2. PURCHASE PRICE. The total purchase price, payable in cash through this Agreement, shall be the sum of: THIRTY-ONE THOUSAND, TfIREE FIUNDRED FIFTY- FIVE AND NO/100 DOLLARS ($31,355.00) ("Purchase Price") 3. CONVEYANCE OF INTEREST IN REAL PROPERTY. Tonant-Seller agrees to execute a Quitclaim 'Deed in the same form as that attached hereto as Exhibit C in favor of Buyer ("Quitclaim Deed"), relinquishing, releasing, and forever quitclaiming to Buyer all right title and 'interest in and to the Tenancy Interest. Tenant -Seller has vacated the property as of August 30, 2016. 5, CONVEYANCE OF INTEREST IN IMPROVEMENTS. The Quitclaim Deed (Exhibit C) will also convey from Tenant -Seller to Buyer all of Tonant-Seller's interest in and to the Improvements, which conveyance shall be free and clear of all recorded and unrecorded encumbrances, liens, assessments, leases, and taxes, Unless otherwise provided, recording of the Quitclaim Deed and Closing (as defined below) of the transaction described herein shall be subject to Tenant -Seller's vacation of the Premises and proof of clear title to all said Improvements having been obtained and received by Buyer in accordance, with Paragraphs 8 and 9 of this Agreement, Exhibit 2 251-5 6. RECORDING. Recordation of any documents delivered through this Agreement is authorized if necessary or proper, upon acceptance by Buyer as described herein. 7. CERTIFICATION OF OWNERSHIP. Tonant-Soller hereby warrants and certifies under penalty of perjury that Tenant -Seller is the owner of the Improvements and that no document has been signed by or on behalf of Tenant -Seller for the purpose of creating any lien, encumbrance, or security interest in any of the Improvements, and that the Tenant -Seller does not lmow of any claim of lien, encuunbrance, or other security interest therein, EXCEPT: (a) Taut Deeds on the Property, duly recorded; and (b) real and personal property taxes. 8. PERMISSION TO ENTER PREMISES. Tenant -Seller hereby grants Buyer or its authorized agent's permission to enter upon the Premises at all reasonable times prior to Closing of this transaction for the purpose of making necessary inspections, 9. BULK SALE. In order to establish proof of clear title to the Improvements, Buyer may publish a Notice to Creditors pursuant to the Bullc Sales Law of the State of California and obtain a title report and/or a report from the Secretary of State's Office as to filings of security interests covering the Improvements. 10, CONFLICTING INTERESTS. In the event any conflicting claim of title or any security interest or lien of any kind is discovered or asserted as to any of the Improvements, Buyer shall, upon receiving notice or knowledge thereof, withhold an amount otherwise payable to Tenant -Seller as is reasonably necessary, in the sole opinion of Buyer, to protect Buyer against such claim of interest or lien. The withholding of such flwds shall not prevent Closing of this transaction if the total funds to be withheld from Tenant -Seller do not exceed the net amount to be paid. to Tenant -Seller through this transaction. Buyer will not pay out the withheld funds or disburse any withheld funds to any claimant or other party (except upon court order or levy) without the written consent of Tenant -Seller. A general creditor's claim shall not be deemed to be a claire against any specific item of Improvements and Tenant -Seller hereby agrees to accept all responsibility therefore. Unless otherwise provided, it shall be presumed that Tenant -Seller is entitled to payment under this transaction for the Improvements. It shall be presumed that the Property owner is the owner of all improvements, fixtures and equipment associated with the Premises other than the Improvements. I I. DISMISSAL OF EMINENT DOMAIN ACTION. If Buyer has previously filed an action to condemn the Tenancy Interest and/or Tenant -Seller's interest in the Improvements, Tenant -Seller hereby consents to the dismissal of such action and waives any claims for compensation, costs, attorney's fees and deposits in said action, or any claim whatsoever which might arise out of the filing of such action, whether or not such claim is specifically identified herein. Tenant -Seller hereby authorizes Buyer to withdraw and make payable to Buyer any funds deposited with the Court in any such eminent domain action, 12. CLOSING: PURCHASE PRICE ADJUSTMENTS. Recording of the Quitclaim Deed by Buyer will constitute "Closing" of this transaction. At Closing, Buyer will pay the Purchase Price to Tenant -Seller, subject to the following adjustments: 251-6 A. Pay and charge Tenant -Seller for any and all current and/or delinquent taxes and any penalties and interest thereon, and for any delinquent or non -delinquent assessments or bonds against the Improvements and the Tenancy Interest. B. Pay and charge Tenant -Seller for any amount necessary to place title in the condition necessary to satisfy Paragraphs 4 and 9 of this Agreement; C. Disburse funds when conditions of this Agreement have been satisfied by Buyer and Tenant -Seller. 13. FULL AND COMPLETE SETTLEMENT. Tenant -Seller hereby acknowledges that the compensation paid to Tenant -Seller through this Agreement constitutes the full and complete settlement of any and all claims against Buyer, resulting from or arising out of Buyer's acquisition of the Property and the Tenancy Interest and any dislocation of Tenant -Seller from the Premises, specifically including, but not limited to the value of the Improvements, leasehold improvements, any and all claims for rental or leasehold value and any and all claims in inverse condemnation and for precondemnation damages, and any and all other claims that Tenant -Seller may have, whether or not specifically mentioned here, relating directly or indirectly to the acquisition by Buyer of the Property, the Irnprovements and the Tenancy Interest (but excluding relocation benefits to which Tenant -Seller may be entitled and the loss of business goodwill, if any). Tenant -Seller and Buyer and each and all of their agents, representatives, attorneys, principals, predecessors, successors, assigns, administrators, executors, heirs, and beneficiaries (collectively "Releasees"), hereby release the other party, and its Releasees, and each of them from any and all obligations, liabilities, claims, costs, expenses, demands, debts, controversies, damages, causes of action, including without limitation those relating to just compensation or damages which any of them now have, or might hereafter have by reason of any matter or thing arising out of or in any way related to any condemnation action affecting the Property, the Improvements and the Tenancy Interest. Additionally, Tenant -Seller does hereby disclaim any right, title or interest in or to the Premises. The payment terms set forth herein, provide full payment for the acquisition any and all property interests Tenant -Seller may have in the Premises. Tenant -Seller hereby expressly and unconditionally waives any claims (known or unknown) including severance damages, statutory interest, claims for inverse condemnation. or unreasonable pro -condemnation conduct, or any other compensation, damages or benefits, arising from the acquisition of the Premises that Tenant -Seller may have against Buyer, its officials, representatives, and attorneys. 14. ACKNOWLEDGMENT CONCERNING CIVIL CODE SECTION 1542. Tenant -Seller acknowledges that it has been advised by its attorneys concerning, and is familiar with, the provisions of California Civil Code § 1542, which provides as follows: "A general release does not extend to claims which the creditor does not larow 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 or hat settlement with the debtor." Tenant -Seller acknowledges that it and any others acting on its behalf herein may have sustained damage, loss, cost, or expenses that are presently unknown and unsuspected and 251-7 which may give rise to additional damages, loss, costs, or expenses in the future. Nevertheless, Tenant -Seller acknowledges that drs Agreement has been negotiated and agreed upon in light of That situation and hereby expressly waives any and all rights which it or others acting on its behalf may have under California Civil Code §1542, or under any statute or common law or equitable principle of similar effect. Tenant-Sollor: ze 15. CONTINGENCY. Transaction is subject to and contingent upon receipt by Buyer of the duly executed Quitclaun Deed from Tenant-Sollor with respect to the Tenancy Interest and the Improvements, This transaction is further subject to and contingent upon approval and acceptance by Buyer. 16. AGREEMENT TO EXECUTE. Tenant -Seller and Buyer agree to execute and file any additional agreements, consents or other documents reasonably necessary to effect the full and complete settlement and purchase of the Improvements and the Tenancy Interest. 17. AUTHORIZATION TO EXECUTE. Tenant -Seller and Buyer represent and warrant that the persons executing this Agreement are duly authorized to do so and to act on behalf of Tenant -Seller and Buyer respectively. 18. COMPROMISE IN SETTLEMENT. This Agreement is a compromise in settlement of pending or potential litigation between Tenant -Seller and Buyer and shall never be treated as an admission by Buyer for any purpose of liability or as to value of any property or claim. 19. SURVIVAL OF RIGHT'S AND OBLIGATIONS. Notwithstanding the releases contained herein and agreement concerning this transaction, all the rights and obligations created under and pursuant to this Agreement shall survive the execution of the Agreement, the releases contained herein and the Closing of this transaction. 20. WARRANTIES REPRESENTATIONS AND COVENANTS OF TENANT - SELLER. Tenant -Seller hereby warrants, represents, and/or covenants to Buyer that: A. To the best of Tenant -Seller's knowledge, there are no actions, suits, material claims; legal proceedings, or any other proceedings affecting the Improvements, the Tenancy Interest or any portion thereof, at law or in equity, before any court or governmental agency. B. Until the Closing; Tenant-Se11er shall maintain the Improvements and the Premises in good condition and state of repair and maintenance, and shall perform all of its obligations under any service contracts or other_ contracts affecting the, Improvements and the Premises. C, Until the Closing, Tenant -Seller shall not do anything which would impair Tenant -Seller's title to the Premises, the Improvements or the Tenancy Interest. 251-8 D, All utilities including gas, electricity, water, sewage, and telephone, are available to the Premises, and to the best of Tenant -Seller's knowledge, all such items are in good working order. E. To the best of Tenant -Seller's knowledge, neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or violate any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or other agreement or instrument to which Tonant-Seller, the Premises, the Improvements or the Tenancy Interest may be subject. P. Until the Closing, Tenant -Seller shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Paragraph 20 not to be true as of Closing, immediately give written notice of such fact or condition to Buyer. 21. HAZARDOUS WASTE. Neither Tenant -Seller nor, to the best of Tenant -Seller's knowledge, any previous owner, tenant, occupant or user of the Property or the Premises, has used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property or the Premises, or transported any Hazardous Materials to or from the Property or the Premises. Tenant -Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from the Premises. The term "Hazardous Materials" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under §25115, §25117 or §25122.7, or listed pursuant to §25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under §25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under §25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under §25281 of the California Health and Safety Code, Division. 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated byphonyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. 51317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. 56901 et seq. (42 U.S.C. 56903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42. U.S.C. 56901, et seq. (42 U.S.C. 56901). 22. COMPLIANCE WITH ENVIRONMENTAL LAWS, To the best of Tenant - Seller's knowledge, the Premises and its use complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state and local laws pertaining to air and water quality, hazardous waste, waste disposal and other anviromnental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response 251-9 Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations and ordinances of the city within which the subject Property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency and all applicable federal, state and local agencies and bureaus, 23. INDEMNITY. Tenant -Seller agrees to indemnify, defend and hold Buyer harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without Limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in, or about, or the transportation of any such materials to or from, the Premises, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the Premises. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death, tangible or intangible property damage, damage to the natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or other adverse effect on the environment. This indemnity extends only to acts or omissions of Tenant-Sellor herein, 24. ATTORNEYS' FEES. If legal action is required in order to construe or enforce any provision of this Agreement, the party prevailing in such action shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as its attorneys' fees and costs. 25. COUNTERPARTS. This Agreement may be executed in counterparts and when so executed by both parties, each counterpart will constitute an original document. 26. BINDING EFFECT. The terms, conditions, covenants and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties hereto. 27. ENTIRE AGREEMENT. This Agreement contains the entire agreement between both parties; neither party relies upon any warranty or representation not contained in this Agreement. IN WITNESS WHEREOF, the patties hereto have executed this Agreement the day and year set forth hereinabove. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATIURE PAGE FOLLOWS. 251-10 Mailing Address of Tenant -Seller Tenant -Seller 7825 Benares Street Mike Otero dba Botanica Sol Downey, California 90241 By:—,_ Its: Date: Mailing Address of Buyer Buyer 20 Civic Center Plaza, M-30 THE CITY OF SANTA ANA Santa Ana, California 92701 David Cavazos City Manager Attest: Maria D, Huizar City Clerk Approved as to Form: By: Jo. Funk A stantCityAttorney Date: i (_ { �'^ ( G Recommended for Approval: By: Fred Mousavipour Executive Director - Public Works Agency 251-11 EXHIBIT A. I,EGAT4 DESCRIPTION OF PROPERTY Real property in the City of SANTA ANA, County of Orange, State of California, described as follows: PARCEL 1 AS SHOWN ON EXHIBIT A ATTACHED TO LOT LINE ADJUSTMENT NO. 2002-09 RECORDED JANUARY 30, 2003 AS INSTRUMENT NO. 03-113806 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. APN: 015-194-20 and 015-194-21 and 015-194-22 251-12 0 EXHIBIT B BOTANICA SOL IMPROVEMENTS PERTAINING TO THE REALTY EFFECTIVE DATE OF VALUE - JULY 25, 2016 Item No. Qty, Description I I Sign, 8'x 41, dual sided, printed graphic d6cor on fiberboard, "Botanlca Sol / 714.376.9472" with logos, wood backing, 2 poles, 4" x 74" x 4", plastic, including 2 flutnewontfloodlights, electrical 2 2 Security doors, 38" x 82", tubular metal frame, metal mesh, lock hardware 3 100 Linear feet of neon tubing/lighting, roof -mounted, electrical . . 4 2 Signs, 4'x 12", graphic d€oor on plastic, "714-376-9472", 251-13 Fair Market wall -mounted 5 2 Parking lot security ]lghts, fluorescent, metal and plastic Place fixture, roof -mounted, electrical 6 2 Pendant lights, 18" high, fluorescent, plastic decorative 960 shade 7 3 Window shadas, 9'x 9', metal dowel, fabric curtains 8 3 Ceiling fans, 54" diameter, wood blades, illumination 9 22 Linear feet of window shades, 8' hlgh, metal slide track, 480 mesh fabric shades, decorative 10 1,847 Square feet of laminate the flooriugthroughout, 900 including 25" high wood baseboard 11 296 Square feet of decorative fabric well covering, 6" high 8,800 tassel d6cor and 4 full length curtains, fabric 12 1 Tankless water heater, Rheem, Model No.: RTG-64X9, 675 natural gas, 153 gallon/hour recovery, 150,000 BTU/Iln, electric 251-13 Fair Market Forced Value in Liquidation Place Value $1,650 $0 960 0 2,800 175 80 0 1,000 0 480 0 400 75 900 45 1,200 150 8,800 0 575 0 675 25 BOTANICA SOL IMPROVEMENTS PERTAINING TO THE REALTY EFFECTIVE DATE OF VALUE - JULY 25, 2016 7 251-14 Fair Market Forced Item Value In Liquidation No, Qty. Description Place Value 13 1 Lot of bathroom upgrades, including plumbing, 4,150 0 consisting of: I Sink counter, 30" x 19", laminate, 2 lower doors, single faucet I Toilet, Mansfield, porcelain 1 Shower fixture, 3' x 6.5' x 3', plastic box and walls, sliding glass door, nozzled shower head, plumbing 1 Ceiling ventilator, Numne, 14" x 12" 1 Medicine cabinet, 36" x 30", 3 glass doors I Lot of ceramic wall U15s; 6" x 6" 2 ADA handrails, chrome 14 1 Lot of plumbing/venting and electrical for stack 130 0 washer/dryer combo 15 1 Lot of kitchen upgrades, consisting of., 4,400 0 13 Linear feet of sink/base cabinetry, 25" deep, L-shaped, laminate on wood, 6 drawers, 6 doors, 1 drop-in sink, 30" x 7" x 20", dual, single mixing faucet, plumbing 11 Linear feat ofwall cabinetry, 41" high, laminate on wood, 9 doors, including exhaust hood, Ikea, stainless steel, 30" wide, through -wall ventilation, illumination 1 Lot of decorative wall tile, 4" wide x ,5" and 1° high, glass and stony 1 Pantry cabinet, 25" x 8'x 25", laminate on wood, 2 doors 16 1 Water connection forrafiigerator 130 0 17 24 Square feet of horizontal mini blinds, plastic slats 70 0 18 1 Lot of interior wall paint covering, textured 2,400 0 19 2 Emergency exit sign cabinets, 12" x 10", plastic case, 230 20 roof -mounted 20 1 Through -wall vent for portable air conditioning unit, 70 0 8" diameter 7 251-14 BOTANICA SOL IMPROVEMENTS PERTAINING TO THE REALTY EFFECTIVE DATE OF VALUE - JULY 25, 2016 Item No. Qty, Description 21 4 Pantry/closet doors, wood, consisting of, 2 18"X60" 2 18"x32" TOTAL IMPROVEMENTS PERTAINING TO THE REALTY *Nate; The following leasehold improvement were reportedly installed and/6r repaired by the lessee. They are included in the related real estate appraisal report; therefore, they are not included herein in order to avoid duplication of compensation. Exterior/interior doors, including locks e Windows o General plumbing e General electrical a Stucco on exterior of building • Lawn/landscaping 7 251-15 Fair Market Forced Value in Liquidation Place Value 255 0 $31,355 $490 EXRIBIT C RECORDING RRQOCSTLD BY: THE CITY OF SANTA ANA AND WHEN RECORDED MAIL TO: Clerk of theCouncil City of Santa Ana 20 Civic Center Plaza, M-30 Santa Ana, California 92701 Exempt from Recording Fee Exempt from Documentary Transfer Tax Pursuant to Government Code Section 6103 _ Pursuant to R&T Code § 11922 pace above this line for Recorders use County Assessor's Parcel Number: 015-194-22 (2123-S. Bristol Street, Santa Ana, CA) FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, MIKE OTERO DBA BOTANICA SOL does hereby REMISE, RELEASE AND FOREVER QUITCLAIM to the THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, the real property in the City of Santa Ana, County of Orange, State of California, described as all right title and interest in and to the following described real property in Exhibit "1" including any and all leasehold interest, title and interest in and to the improvements pertaining to the realty which are attached or affixed in any manner to the following described real property specifically including, but not,lmited to the items in Exhibit "2", list of Improvements Pertaining to the Realty, (fixtures and equipment); attached hereto and by this reference made a part hereof, which are either generally or for purpose of this deed a part of that parcel of real property in the City of Santa Ana, County of Orange, State of California, described as follows: - -- Grantor for himself, his heirs, representatives and assigns covenants and warrants that: 1) Grantor is the sole owner of the itemized,.' -Improvements Pertaining to the Realty conveyed by this Quitclaim Deed free from all liens and encumbrances, and 2) Grantor will defend the title and quiet enjoyment of the real property described above, including all Improvements Pertaining to the Realty, against all demands and claims of all persons. SEE EXHIBIT "1" & "2" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF IN WITNESS WHEREOF, the grantor hereto has caused this Quitclaim Deed to be executed as of this 1 Q day of 80 t/, 2016. By; Date: %/ is 251-16 EXHIBIT "I„ LEGAL DESCRIPTION Real property in the City of SANTA ANA, County of Orange, State of California, described as follows: PARCEL 1 AS SHOWN ON EXHIBIT A ATTACHED TO LOT LINE ADJUSTMENT NO, 2002-09 RECORDED JANUARY 30, 2003 AS INSTRUMENT NO, 03-113806 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. APN: 015-194-20 and 015-194-21 and 015-194-22 251-17 EXHIBIT "2" BOTANICA SOL IMPROVEMENTS PERTAINING TO THE REALTY EFFECTIVE DATE OF VALUE - JULY 25, 2016 Item No. Qty, Description I 1 Sign, 8'x 4', dual sided, printed graphic d€ear on fiberboard, "Botanloa Sol / 714.376.9472" with logos, wood backlog, 2 poles, 4" x 74" x.4", plastic, including 2 fluorescent floodlights, electrioal 2 2 Security doors, 38" x 82", tubular metal frame, metal mesh, lock hardware 3 100 Linear feet of neon tubing/lighting, roof -mounted, electrical "' 4 2 Signs, 4'x 12", graphic d6cor on plastic, "714-376-9472", wall -mounted 5 2 Parking lot security lights, fluorescent, metal and plastic fixture, roof -mounted, electrical 6 2 Pendant lights, 18" high, fluorescent, plastic decorative shade 7 3 Window shades, 9'x 9', metal dowel, fabric curtains 8 3 Ceiling fans, 54" diameter, wood blades, illumination 9 22 Linear feet of window shades, 8' high, metal slidetrack, mesh fabric shades, decorative 10 1,847 Square feet of laminate tile flooring throughout, including 25" high wood baseboard 11 296 Square feet of decorative fabric wall covoring, 6" high tassel d€cor and 4 full length curtains, fabric 12 1 Tankless water heater, Rheem, Model No.: RTG-64309, natural gas, 153 gallon/hour recovery, 150,000 BTUiHr., electric 251-18 Fair Market Forced Value in Liquidation Place Value $1,650 $0 960 0 2,800 175 80 0 1,000 0 480 0 400 75 900 45 1,200 150 8,800 0 575 0 675 25 13OTANICA SOL IMPROVEMENTS PERTAINING TO THE REALTY EFFECTIVE DATE OF VALUE - JULY 25, 2016 2 251-19 Fair Market Forced Item Value in Liquidation Nn. Qty. Description Place Value 13 1 Lot of bathroom upgrades, including plumbing, 4,150 0 consisting of: I Sink counter, 30" x 19", laminate, 2 lower doors, single faucet 1 Toilet, Mansfield, p6r6alain 1 Shower fixture, 3' x 6.5'x 3', plastic box and walls, sliding glass door, nozzled shower head, plumbing 1 Ceiling ventilator, Nutoae, 14" x 12" 1 Medicine cabinet, 36" x30", 3 glass doors 1 Lot of ceramic waif tiles; 6" x fi" 2 ADA handrails, chrome 14 1 Lot of plumbing/venting and electrical for stack 130 0 washer/dryer combo 15 1 Lot of kitchen upgrades, consisting of: 4,400 0 13 Linear feet of sinlc/base eabiarctry, 25" deep, L-shaped, laminate on woad, 6 drawers, 6 doors, ' 1 drop-in sink, 30" x 7" x 20", dual, single mixing faucet, plumbing II Linear feet of wall cabinetry, 41" high, lamineto on wood, 9 doors, including exhaust hood, Ikea, stainless steel, 30" wide, through -wall ventilation, illumination I Lot of decorative wall tile, 4" wido x .5" and 1" high, glass and stone 1 Pantry cabinet, 25" x 8' x 25", laminate on wood, 2 doors 16 1 Water connection for refrigerator 130 0 17 24 Square feet of horizontal mini blinds, plastic slats 70 0 18 1 Lot of interior wall paint covering, textured 2,400 0 19 2 Emergency exit sign cabinets, 12" x 10", plastic case, 230 20 roof -mounted 20 I Through -wall vent for portable air conditioning unit, 70 0 8" diameter 2 251-19 $OTANICA SOL IMPROVEMENTS PERTAINING TO THE REALTY EFFECTIVE DATE OF VALUE - JULY 25, 2016 Item No. Qty. Description 21 4 Pantry/closet doors, wood, consisting of: 2 18"X60" 2 18"x32" TOTAL IMPROVEMENTS PERTAINING TO THE REALTY *Note; The following leasehold improvement were reportedly installed and/6r repaired by the lessee. They are included in the related real estate appraisal roport; therefore, they are not included herein in order to avoid duplication of compensation. . Exterior/interlor doors, including locks e Windows . General plumbing o General electrtcal . Stucco on exterior of building * Lawn/landscaping 3 251-20 Fair Market Forced Value in Liquidation. Place Value 255 0 $31,355 $490 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document, State of California County of On t/ before u e,SStA$ l , ti(t)�� 1 G (Insert no me and title ofth ficer) personally Name of Signer (2) who proved to me on the basis of satisfactory evidence to be the personXwhose name is re subscribed to the within instrument and acknowledged to me thaoshe/they executed the same in s Ter/their authorized capacity4, and that b i her/their signature(4on the instrument the person, or the entity upon behalf of which the person1acted, 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. Q11iature of Notary Pu 251-21 " JET US ORRTIZ COMM.#2141901 Notary PubOc. Q®IHomla y M LOS GammsE LES � NTY 'th (Seal) 251-22 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: AGREEMENT WITH CLR DESIGN FOR CONSULTANT DESIGN SERVICES FOR THE SANTA ANA ZOO GIANT RIVER OTTER EXHIBIT (PROJECT NO. 16-2658) (STRATEGIC PLAN NO. 6, 1G) CITY MANAG R RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2"a Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with CLR Design for the two-year term beginning December 21, 2016, and expiring on December 20, 2018, with the option for the City to grant up to a two one-year renewal options, to provide design services for the Santa Ana Zoo Giant River Otter Exhibit, in the total amount of $313,695, and authorize a 10 percent contingency for design in the amount of $31,370, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION Approval of this recommended action will enable the preparation of plans and specifications (Contract Documents) for the project as identified in the 2016/2017 Capital Improvement Program. These contract documents will be used to competitively bid and construct the project. The current Amazon's Edge Exhibit at the Santa Ana Zoo (Exhibit 1) opened to the general public in 1993. The exhibit complex is planned for upgrades and renovation, and will add a new exhibit called the Giant River Otter, featuring a mammal species found in the Amazon rainforest. The exhibit area includes a moat, water filtration system, viewing structure, and holding facility. In July 2016, the Public Works Agency released a Request for Proposals (RFP) inviting qualified firms to submit proposals for zoological design services. The RFP was posted on the City website and also sent to the Association of Zoos and Aquariums for distribution to their membership. In August 2016, three proposals were received. The proposals were evaluated by personnel from the Public Works Agency, Zoo Staff, and the Friends of Santa Ana Zoo. Each firm was rated according to its firm/team experience, understanding of need, relevant project experience, schedule, references, and proposed cost and pricing data. The following is the list of the firms and their respective evaluation scores: 25J-1 Agreement with CLR Design for Zoological Design Services December 20, 2016 Page 2 Rank Firm Score 1 CLR Design 94.0 2 The Portico Group 87.6 3 ELM Environments 86.0 Based on the ranking and proposed fee, staff recommends that the top firm, CLR Design, be retained to design the Santa Ana Zoo Giant River Otter Exhibit for a fee in the amount of $313,695, based on the schedule of rates and fees attached to the contract (Exhibit 2). Staff requests authorization of a 10 percent design services contingency of $31,370, which results in the total agreement amount of $345,065. 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 Funds have been budgeted and are available for expenditure as follows: $56,968 in the Residential Development District 2 In -Lieu Funding Account (No. 31213261-66220, Project 16- 2658) and $288,097 in the Residential Development District 3 In -Lieu Funding Account (No. 31313261-66220, Project 16-2658). Any unspent encumbered balance will be carried forward into subsequent fiscal years as needed to fulfill the agreement. Funds will be spent according to the spending plan below: Contract Period Fiscal Year Amount 2016/17 (December— June) $313,695 2017/18 (July — June) $31,370 TOTAL: $345,065 25J-2 Agreement with CLR Design for Zoological Design Services December 20, 2016 Page 3 APPROVED AS TO FUNDS & ACCOUNTS: re ousavipou Francisco Gutierrez Executive Director Executive Director Public Works Agency Gerardo Mouet Executive Director Parks, Recreation & Community Services Agency FM/W EG/sf Exhibits: 1. Project Location Map 2. Agreement Finance & Management Services Agency 25J-3 25J-4 D 1 PARttCOOflT PL PALM ST I n aD ADD a 1ST ST 4TH ST LEGEND ►.� PROJECT EXHIBIT 1 SANTA ANA SANTA ANA ZOO CITY COUNCIL ' PWA AGENDA CONSULTING ZOOLOGICAL DESIGN SERVICES �EC6— 2o GIANT RIVER OTTER EXHIBIT PUBLIC WORKS AGENCY (PROJECT 16-2658) PAGE 1 OF 1 25J-5 25J-6 INS -IA CONSULTANT AGREEMENT CITY OF SANTA ANA THIS AGREEMENT is made and entered into this 21st day of December, 2016 by and between CLR Design, (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 zoological design. 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: SCOPE OF SERVICES Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Scope of Services - Exhibit A, attached hereto and incorporated by reference. The Scope of Services shall include a Schedule for the Delivery of Services, which shall be delivered as scheduled, beginning upon the City's issuance of a Notice to Proceed. 2. COMPENSATION City agrees to pay, and Consultant agrees to accept as total payment for its services to the City, the amount of $313,695 in accordance to rates and charges identified in Compensation - Exhibit B, attached hereto and incorporated by reference, and in accordance with Section 18. 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 a two (2) one (1) -year renewal option(s) exercisable by the City Manager and the City Attorney, unless terminated earlier in accordance with Section 15, below. 25J-7 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. OWNERSI3IP 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 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. Page 2 of 8 25J-8 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. 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 indenmification to be provided by the Consultant. Page 3 of 8 25J-9 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 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. Conflict may be further specified in Certifications - Exhibit C, attached hereto and incorporated in this Agreement by reference. Page 4 of 8 25J-10 12. 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. 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 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. Page 5 of 8 25J-11 16. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 17. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 18. PAYMENTS & INVOICES a. 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. b. Invoices should be submitted on the 15th of each month and shall include the following information at a minimum: V. Consultant's invoice number and City's agreement number vi. Beginning and ending dates for services vii. City Project and/or Task Order number and/or name (if applicable) viii. Work site address/location (if applicable) ix. Tasks or deliverables completed and percentage (%) of total services completed. X. Remaining Overall and Task Order budget available 19. MISCELLANEOUS PROVISIONS a. Additional provisions, if any, are identified as Additional Provisions, Exhibit D, attached hereto and incorporated into this Agreement by 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. C. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. Page 6 of 8 25J-12 20. 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 Sonia R. Carvalho Executive Director, Public Works Agency City Attorney City of Santa Ana City of Santa Ana 20 Civic Center Plaza (M-21) 20 Civic Center Plaza (M-29) P.O. Box 1988 P.O. Box 1988 Santa Ana, California 92702 Santa Ana, California 92702 Fax: 714- 647-5635 Fax: 714- 647-6515 To Consultant: Gregg Leicester, ASLA Associate CUR Design 3295 Laguna Canyon Road Suite C Laguna Beach, CA 92651 Fax: (215) 564-1154 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. Page 7 of 8 25J-13 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year fust 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 CONSULTANT: City Attorney By: John rk Gregg Leicester Assistant City Attorney Associate Tax ID# 23-2622204 RECOMMENDED FOR. APPROVAL: FRED MOUSAVIPOUR. Executive Director Public Works Agency 25J-14 Page 8 of 8 EXHIBIT A SCOPE OF SERVICES 25J-15 EXHIBIT A Req Requirements: Scope of services: Demlls the work phases to he cempleNA, the [rads to be accomplished and the deliverables to be provided, as incorporated into the Pmlect Sdredule shown on page xx. GETTING IT DONE... Experience—design and construction, communication reliability, and proven legacy &vision. Design and Management Approach Our design approach engages the Owner at each step of the design and documentation process. It is an active and iterative process of exchanging ideas, concepts, and trends across the team, crafting the uniquevision appropriate onlytoSAZ. We uti I ize face to face workshops, web -based conference calls, meeting summaries and follow-up, and targeted document reviews to realize the vision throughout Planning and Concept phases. During Schematic Design our interactive workshops provide the opportunity to engage all stakeholders in the vision development. Ourworkshop process continues through Design Development and the Construction Documentation phase to ensure that all project details and systems are aligned with the original vision. During construction, we anticipate weekly web -based meetings and on-site visits averaging every four weeks. CLR will play a continuous role during the entire project, and will have an in-house and local team that will be readily available to answer any and all Owner questions. The CLR Team will provide Full Design Services including Architecture, Landscape Architecture, Exhibit Design, Caging Design, and Engineering Services. Appropriate drawings, plans, sections, elevations, details, specifications, and narratives will be prepared to illustrate and define each phase of work, including: Task 1 Pre -Design &Task 2 Concept Design Task 3 Design Development Task 4 Construction Documentation Task 5.1 Bidding & Permitting Task 5.2 Construction Administration Task 5.3 Project Closeout WORKSHOPS Our workshop format is designed to be Flexible, but allow plenty of time for general review and discussion. We want to achieve a balance between meeting with the Owner team to assess options, and having the time to make immediate adjustments to program and concept ideas for another review with the design team. Each workshop is documented by a report summarizing the proceedings as a baseline for the next steps. This will be critical to creating a retrievable record of the evolution of the design and construction process so that each stakeholder and design team member is fully engaged. The design team has had considerable success with an open and highly interactive workshop approach to planning, designing, and decision making. We explore and incorporate the points of view, observations, recommendations, and expectations of the key SAZ people involved in the project's development. We have found that this approach not only gives the client maximum input and control of the final product, but also forges an active constituency for the project. These active workshops enable us to test ideas quickly to see if they are valid or not. The result is a product tailored to the client's needs that is thorough, creative, achievable, and maintainable following implementation. Workshop Facilitation Design Workshop at CLR's Office CLR I AUGUST 22, 2016 25J-16 SANTA ANA ZOO I GIANT RIVER OTTER PROJECT 21 TASK 1: PRE -DESIGN & TASK 2: CONCEPT DESIGN The focus of this phase will be to affirm the project vision, analyze the selected project site, the existing habitat and holding facility, and surrounding context within the Zoo, and secure the program. We propose multiple on-site workshops (see Schedule) to jump start the concept testing process and to establish the overall look & feel for the project. At the completion of Task 2, the project team will work together to establish the project budget breakdown, precise scope of work, and schedule moving forward. Key Tasks: Reaffirmation of project goals and objectives. • Project Team brainstorming and collaboration to develop the project vision. Analysis of the existing facilities and identification of opportunities and constraints. Confirm current and future operational uses. Review and confirm animal husbandry guidelines/regulations per AZA and USDA. • Outline/identify requirements of other governing authorizes such as, stormwater management practices, site and building permit requirements, utilities, seismic, environmental, energy and water usage objectives, CASP, etc. • Lock -down preliminary building plan layout, as well as basic site development needs and service access. • Completion of Basis of Design for all architectural and engineering requirements. • In collaboration with the Owner, prepare an Opinion of Probable Costs for the project program established. Water Filtration/LSS Tasks include: Communicate with the Team, to determine the specific requirements for the LSS. TJP will provide answers to client questions related to Life Support and water treatment as required to explain how proposed processes meet the Zoo's needs. Define LSS processes for water quality requirements of the exhibit(s). Provide recommendations for the location of the LSS, space requirements, and LSS processes. Provide Process Flow Diagrams (PFD) for life support systems. The LSS processes will include water treatment facilities recommendations and design of water treatment equipment to provide water quality per industry standards and design leader's requirements. Design includes sizing and specifying filtration equipment, disinfection equipment (ozonation and/or chlorination), and strategies for misc LSS water treatment appurtenances. The 100% complete Schematic Design (Tasks 1 and 2) milestone will allow for the overall design, program and associated costs to be confirmed, as well as the necessary scope of architectural and engineering services required to fully execute the project. The services and deliverables noted below for Design Development, Construction Documentation, Bidding and Permitting, and Construction Administration are preliminary at this time and will be reconfirmed at the completion of Schematic design. 22 CLR I AMST 22, 2016 25J-17 TASK 3: DESIGN DEVELOPMENT Upon approval of Schematic Design the project team will proceed with Design Development. This will involve 2-3 on-site workshops in which we will meet with key Zoo user groups such as executive staff, animal staff, visitor services, grounds/maintenance, and horticulture, as well as increased design coordination meetings with the engineering disciplines. Key Tasks: • Confirm/refine the project requirements based on the 100% complete SD Cost Estimate. • Focused workshops with key Zoo user groups. • Develop the site plan in the vicinity of the building, building layout, exhibits and detailed building systems and infrastructure drawings. • Development of animal activity/enrichment and other activity -based concepts. • Focused development of interior and exterior caging/barrier plans and details based on the approved Basis of Design from the previous work phase. • Focused and detailed coordination meetings with engineers. • Coordination of Interpretive Design (by others) messaging goals, concepts and details. • Continued collaboration with the Owner and Construction Manager (delivery method to be confirmed) to track project costs and schedule. TASK 4: CONSTRUCTION DOCUMENTATION This phase will involve approximately 3 workshops in which we will meet less with key Zoo user groups and spend more time coordinating with the Zoo's Project Manager and engineering disciplines in order to develop the permit, bid and construction documents. Key Tasks: • Confirm/refine the project requirements based on the 100% complete DO Cost Estimate. • Focused workshops with key user groups in order to complete the documents and assure the inclusion of all the components that make up the project program and vision. Finalize detailed building and site/exhibit engineering systems and infrastructure drawings. Focused and detailed coordination meetings with engineers and the Zoo's Project Manager. Preparation, completion and submission of all plans and narratives required for agency approvals including building and site permits. Continued collaboration with the Construction Manager(ifapplicable) totrack project costs and schedule. 25J-18 SANTA ANA ZOO I GIANT RIVER OTTER PROJECT 23 Site Observation Reports On -Site Meetings with Owner and Construction Manager TASK 5.7: BIDDING AND PERMITTING The key Design Team members will participate in a pre-bid meeting in order to present the project to bidders and answer questions. We feel that it is critical with the uniqueness of zoo projects such as this, that we participate in giving bidding contractors the "big picture" as well as answer detailed questions.The Design Team will also be available bytelephone/web- based meeting during the bid process to answer questions. Key Tasks: • Participate in pre-bid walk-thru and interview contractors. • Review and respond to contractor RFI's during the bid period. • Issue clarifications to the Bid Documents/Addendum if necessary for both contractors and City Agencies as part of the permitting process. • Review Substitution Requests submitted by the contractors. • Assistwith analysis of construction bids and participate with theZoo/CM tomakefinal recommendations. TASK 5.2: CONSTRUCTION ADMINISTRATION The unique nature of zoo facilities and construction requires the experienced involvement of CLR as well as the day to day availability of our local engineering firms. It is anticipated that CLR will attend approximately one meeting per month on-site at critical stages during construction. The CLRTeam will provide the necessary services outlined below. Key Tasks: • Site Observation Reports • RFI responses • Review and processing of Submittals and Shop Drawings • Issue clarifications to the Construction Documents via ASI • Design Team attendance of weekly Owner/Architect/Contractor coordination meetings, either via conference call or web -based application (i.e. GoToMeeting), or on-site periodically if required. • Review of contractor Change Notifications and Change Orders. • Review of Certificates of Payment/Pay Applications. Issuance of Punch -List and final Punch -List observation on-site. TASK 5.3: PROJECT CLOSEOUT We know the importance of seeing a project through until the very end. This is the time when contractors typically demobilize and start thinking about the next project. We feel it is imperative for the Owner/Architect/Engineer/CM team to stay on task to ensure the project is complete and the full vision is realized. The CLR Team will provide project close- out services as outlined below. Key Tasks: • Final Punch -List observation on-site and processing offinal Pay Application. • Preparation/submission of Record Documents in CAD and PDF format. • Mechanical/LSS Systems Start -Up (as required). • Review of O&M Manuals, Warranty Packages, and Service Provider Agreements. 24 CLR I AUGUST 22, 2016 25J-19 EXHIBIT B COMPENSATION Fee Proposal including hourly rates (from Consultant Proposal) The total compensation may include a line item for the cost from the Fee Proposal, followed by a line item for any contingency, followed by a grand total not to exceed (NTE) Amount. This is what may be transferred to the front page of the contract. 25J-20 D EXHIBIT B D E S I G N ARCHITECTURE - LANDSCAPE ARCHITECTURE • EXHIBIT DESIGN mark e. beauchamp, asla • gregory 1. dykstra, ala • gary h. lee, aia •jon stefansson, asla PROFESSIONAL FEE This proposal includes fees and expenses for the conversion of Amazon's Edge to new Giant River Otter Exhibit phase (Tasks 1 - 5 as outlined in our proposal submitted August 22, 2016.) CLR will carry -out the work described in the proposal of August 22, 2016 for the Lump Sum Professional Fee of Two Hundred Ninty-Six Thousand Nine Hundred and Twenty Dollars ($296,920) as detailed in the Fee Breakdown chart below. Reimbursable expenses are in addition to the Professional Fee and represent the cost of travel (air/ground), long distance communication, reproduction (plotting, printing, digital imaging), mailing, etc. Reimbursable expenses are billed at cost and are estimated (not an upset limit) to be Sixteen Thousand Seven Hundred and Seventy -Five Dollars ($16,775). FEE BREAKDOWN Firm Took Task2 7ask3 Task Task SubTotal CLR Design Architecture, Exhibit0esign, $14,500 $27,500 $34,750 $45,750 $29,750 $152,250 Project Management KPFF $740 $1,500 $4,880 $7,600 $3,720 ' $18,440 Civil Engineering KPFF $1,000 $1,700 $7,500 $10,800 $7,500 $28,500 Structural Engineering 5&K - $700 $2,300. $4,000 $5,500 $3,500 Mechanical PLumbmg Engineering .$16,000 5&K Electrical Engineering $500 $1,500 $4,000 $5,000 $3,500 $14,500 Tip $2,000 $8,070 $14,500 $21,000 $10,800 $56,370 LSS Engineering Subtotal Design $19,440 $42,570 $69,630 $95,650 $58,770 $286,060 KPJ Consulting $500 $2,000 $2,000 $1,500 $0 $6,000 Cast Estimating Karl Kranz $1000 $1,500 $750 $750 $0 $4,000 Husbandry Expert CDA $0 $0 $0 $860 $0 $860 CASP Subtotal Survey & Specialty $1,500 $3,500 $2,750 $3,110 $0 510,860 TOTAL FEES $20,940 $46,070 $72,380 $98,760 $58,770 $296,920 Estimated Expenses $1,475 $3,650 $4,450 $3,250 $3,950 $16,775 t 215.564.0250 • f 215.564.1154 • www.clydesign.com . 833 chestnut street, suite 1000 philadelphia, pa 19107 25J-21 3295 laguna canyon road, suite c laguna beach, ca 92651 FEE BREAKDOWN BY TASK, FIRM AND DISCIPLINE continued on following pages 25J-22 KPFF CLRDesign.. KPFF (Structural Engineering) Tip v m v v a, m v Santa Ana Zoo a w v � o w t; t; t; a o v v v � n v v v m n Giant River Otter Exhibit a r 5 v w m Santa Ana Zoo a a v r d v - w Rate $200 $170 $135 -'$150 2 m $200 u Giant River Otter Exhibit $150 a d Task 1: Pre -Design Hours 1 2 a 0 o o U 3 1 0 a 0 Task 2: Concept Design Hours 1 3 3 2 0 1 Rate ' $235 $175 $185 -$75 $75' ". $90 -:$178 $125 ..$108 $98 $80 '-$70 Task 1: Pre -Design Hours 4 18 2 44 62 24 5 10 0 0 0 0 Task 2: Concept Design Hours 8 40 12 71 100 38 16 20 9 8 8 4 Task 3: Design Development Hours 12 70 20 80 114 16 15 40 30 20 12 8 Task4: Construction Documents Hours 8 72 40 154 150 12 30 48 43 24 24 12 Task 5: CD, Bid/Permit, Con. Admin. Hours 4 40 8 127 140 4 8 24 48 0 0 16 Subtotal Hours 36 240 82 476 566 44 74 142 .130 52 44 - 40 Subtotal by Discipline $8,460 $42,000 $15,170 $35,700 $42,450 $8,470 $13,172 $17,750 $14,040 $5,096 $3,520 $2,792 Subtotal by Firm $152,250 $56,370 continued on following pages 25J-22 KPFF (Civil Engineering) KPFF (Structural Engineering) m v v m v Santa Ana Zoo a w o o a t; t; t; a o v v v � n v v v m n Giant River Otter Exhibit a a Rate $200 $170 $135 -'$150 $120 $90 $200 $170 $135 $150 5120' 90 Task 1: Pre -Design Hours 1 2 1.5 0 0 0 2 3 1 0 0 0 Task 2: Concept Design Hours 1 3 3 2 0 1 2 3 2 4 0 0 Task 3: Design Development Hours 2 4 8 0 20 3.5 6 8 8 22.2 0 4 Task 4: Construction Documents Hours 3 8 20 22 3.5 6 8 16 20 16 4 Task 5: CD, Bid/Perm it, Con. Admin. Hours 0 9 9 0 8 0 0 23..5 20 11 0 0 Subtotal Hours 7 26 41.5 -2 50 8.0 16 45.5 47 57.2 16 8 Subtotal by Discipline $1400 $4,420 $5,603 $300 $6000 $717 $3200 $7,735 $6,345 $8580 $1,920 $720 !Subtotal by Firm $18,440 $28500 continued on following pages 25J-22 FEE BREAKDOWN BY TASK, FIRM AND DISCIPLINE continued 25J-23 KPJ S&K(Electrical Engineering) CDA., S&K (Mechanical Engineering) subtotalby Santa Ana Zoo a v Kranz a v m v 'Expenses Total Santa Ana Zoo v Giant River Otter Exhibit v Giant River Otter Exhibit a o o a $125 $200 o Task 1: Pre -Design Hours w 5 0 195.23 $21,438 $1,475 w Task 2: Concept Design Hours o 7.5 Rate $250 $195' ` $185 $170 $145 $110 $250 $195 '$185 - $170 $145 $110 Task l: Pre -Design Hours 0 1 0 1 1 0 0 2 1 0 1 0 Task 2: Concept Design Hours 0 2 2 2 2 1 1 3 3 3 2 1 Task 3: Design Development Hours 2 3 5 7 4 2 2 3 5 7 4 2 Task4: Construction Documents Hours 1 3 7 9 7 3 1 3 8 10 8 3 Task 5: CD, Bid/Permit, Con. Admin. Hours0 $-60 2 5 6 5 4 0 2 5 6 5 4 Subtotal Hours -3 11 19 25 18.899 10 4 13 c 22 .26 19.83 –10 Subtotalb Discipline $750 $2,145 $3515 $4250 $2,740 $1,100 $1,000 $2,5351 $4,070 $4,420 $2,875 $1,100 Subtotalb Firm $14,500 1 $16000 25J-23 KPJ Karl = CDA., Total Moura subtotalby Estimated Grand Kranz by Task Task 'Expenses Total Santa Ana Zoo Giant River Otter Exhibit Rate $125 $200 .$215 Task 1: Pre -Design Hours 4 5 0 195.23 $21,438 $1,475 $22,913 Task 2: Concept Design Hours 16 7.5 0 400.58 $46,336 $3,650 $49,986 Task 3: Design Development Hours 16 3.75 0 588.45 $72,293 $4,450 $76,743 Task 4: Const ruction Documents Hours 12 3.75 4 826.25 $98,279 $3,250 $101,529 Task 5: CD, Bid/Permit, Con. Admin. Hours 0 0 0 543.38 $59,575 $3,950 $63,525 Subtotal Hours 48 '20 4 2553.89 Subtotal by Discipline $6,000 $4,000 $860 $313 695 .Subtotal by Firm $-60 4 000 860 296 920 16,775 25J-23 ASSUMPTIONS 1. CLR Travel Assumptions: See proposed project schedule for assumed quantity of workshops and on-site construction visits. Of the 8 design workshops/meetings proposed during Tasks 1-4, we are assuming (2) meetings will include 1 -person (PIC or Project Architect) traveling from our Philadelphia office, accompanied by CLR staff from the CA office. 2. TJP Travel Assumptions: Assuming a total of 7-8 onsite meetings. No overnight travel accommodations anticipated. 3. Husbandry Expert Assumptions: • Karl Kranz, Animal Husbandry consultant, will participate via conference calls and web - based (audio/video) meetings. Upon request, on-site meetings can be included at an additional cost. 4. LSS Design Assumptions: As a proposed cost reduction measure, the existing 80,000 gallon pool will not require underwater viewing quality water/filtration for the entire volume. The system will be designed for a 30K -40K gallon pool area with underwater viewing, as well as additional shallow swim zones utilizing as much of the existing moat system as feasible. LSS will be located outdoors below a shade structure (no building required). Some interior space for ozone equipment will be required. 5. Site, Habitat and Building Assumptions: Exhibit Interior Holding and Kitchen Area, as described in RFP - the design team will assess and retrofit as appropriate. We are not anticipating a major building expansion. • Public Viewing Areas, as described in RFP - assuming a new observation deck (existing wood structure is aging) as well as an underwater viewing zone. 6. GASP Accessibility Review Assumptions: Four hours of a CASP consultant (Principle at CD/A) is included in this proposal to review the project plans during detailed design. Any additional time required can be provide as an additional service. 7. Surveys: Site Topographic and Geotechnical Survey work is excluded from this proposal. It is assumed that this work will be provided by the Owner if required. If desired, these services can be added to our Agreement upon request, as an additional service. 8. Construction Budget: Our understanding is that the Construction Budget is approximately $1.45M and the total Project Budget is $2M. 25J-24 2016 HOURLY BILLING RATES CLR Design $3091hr KPFF (Civil & Structural Engineering) Principals $195-245/hr Principals $2001hr Landscape Architects $75-175/hr Project Managers $120-1601hr Architects $75-775/hr Project Engineers $95-135/hr Graphic Designers $85-130/hr Designers/Drafters/iechnicians $75-105/hr Technical Support $70/hr Support5taff $65-75/hr Tip Project Manager KPFF (Survey) Technical5taff Senior Engineers $7781hr Survey Managers $150/hr Engineers $125-158/hr Project Surveyors $95-115/hr Senior Designers $1081hr Survey Technicians $70-95/hr Designers $98/hr Field Crew $120-160/hr Drafters $80/hr Support Staff $65-75/hr Support Staff $70/hr 25J-25 5&K Engineers Principals $3091hr Project ManagerlSenlor Engineer $1581hr Engineers/Senior Designer $2211hr Designers $1961hr Drafter/CAD Operator $7391hr Clerical $103/hr KPJ Consulting Senior Cost Estimators $1251hr CD/A Principals/CASp $215/hr Cast/Database Consulting $210/hr CASp Engineers & Associates $190-1951hr Project Manager $180-1901hr Technical5taff $130-165/hr Clerical $90/hr Husbandry Expert Karl Kranz $2001hr EXHIBIT C CERTIFICATIONS C-1 through C-3 25J-26 EXHIBIT C CITY OF SANTA ANA REP NO.: 16-079 SANTA ANA ZOO AMAZON'S EDGE CONVERSION TO GIANT RIVER OTTER EXHIBIT NON -COLLUSION AFFIDAVIT (Title 23 United States Code Section 112 and Public Contract Code Section 7106) In conformance 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 agreement, communication, or conference with anyone to fix the bid price of the BIDDER or any other 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, further, 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. BIDDERS are cautioned that malting a false certification may subject the certifier to criminal Signed State of P County of Subscribed and sworn to (or affirmed) before me on this 22 day of August, 2016, by Karen E. Marshall , proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me of WM" SM nam LAY ---------...T 2 — Notary Public Signature Notary Public Seal 25J-27 SANTA ANA 200 I GIANT RIVER OTTER PROJECT 43 Page 1 of 1 CITY OF SANTA ANA RFP NO.: 16-079 SANTA ANA ZOO AMAZON'S EDGE CONVERSION TO GIANT RIVER OTTER EXHIBIT NON -LOBBYING CERTIFICATION 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 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 this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, 'Disclosure of Lobbying Activities," in conformance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 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 tl at all uch subrecipients shall certify and disclose accordingly. 0 Signed: Title: Seni rine pal Firm: CLR Design, Inc. Date: August 22, 2016 44 CLR I AUGUST 22, 2016 25J-28 Page 1 of 1 CITY OF SANTA ANA RFP NO.: 16-079 SANTA ANA ZOO AMAZON'S EDGE CONVERSION TO GIANT RIVER OTTER EXHIBIT NON-DISCRINIINATION CERTIFICATION 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 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 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. 25J-29 SANTA ANA 200 I GIANT RIVER OTTER PROJECT 45 CITY OF SANTA ANA RFP NO.: 16-079 SANTA ANA ZOO AMAZON'S EDGE CONVERSION TO GIANT RIVER OTTER EXHIBIT The Consultant 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 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 Chapte}. I Signed: ,' r v "_1 1 Title: Se�tsi& Principal Firm: CLR Design, Inc. Date: August 22, 2016 46 CLR I AUGUST 22, 2016 25J-30 REQUEST FOR COUNCIL ACTION N1�i�telwkIMr_Wr 141- 11krCrVi DECEMBER 20, 2016 TITLE PAYMENT AUTHORIZATION TO PROCURE AMERICA FOR ELECTRIC UTILITY COST REDUCTION SERVICES {STRATEGIC PLAN NO. 4,31)) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on tat Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize payment of Procure America Invoice #6-1603b in the amount of $15,078.99 as compensation for generating electrical utility cost savings under Agreement A-2014-227. DISCUSSION On September 16, 2014, Council authorized staff to execute an agreement with Procure America for utility cost reduction services. The three-year agreement called for an operational review of the City's gas and electric utility costs to include analyzing invoices, supplier contracts, and other pertinent data to identify potential cost saving opportunities. Procure America compensation would have two payment schedules: Schedule 1 would consist of Initial Payments calculated as 1% of the City's Gross Annual Spend on gas and electric utility bills; Schedule 2 would consist of Subsequent Payments calculated as a 40% share of gas and electric utility bill savings identified by Procure America during the three-year period of the agreement. Absent information from the pending operational review at the time, staff estimated and set the contract cost at a not to exceed (NTE) amount of $50,000. At this juncture, Procure America has completed the operational review and selected 43 out of more than 1,200 City electric service accounts for rate adjustments to generate electric bill savings. No cost-saving opportunities for gas service accounts were identified. Based on the Finance Department Fiscal Year 2013-14 Utilities Expenditure Report, Procure America is owed Schedule 1 Initial Payments in the amount of $71,610.56, which represents 1% of the City's $7,161,056 gross annual spend on gas and electric bills. Procure America has submitted three invoices for payment to date. The first payment was approved by Council on April 20, 2016, for Invoice #8-1503 in the amount of $49,346.57 exhausting most of the original NTE amount of $50,000. The second payment, which required 29A-1 Payment Authorization To Procure America For Electrical Utility Cost Reduction Services December 20, 2016 Page 2 Council to increase the A-2014-227 NTE amount from $50,000 to $70,108.69, was approved in the amount of $20,762.12 for Invoice #10-1052a on August 2, 2016. For the third payment, Procure America submitted Invoice #6-1603b for $15,078.99 to be split between Schedule 1 for $1,501.87 and Schedule 2 for $13,577.12 as detailed in Exhibit 1 and tabulated as follows. The recommended action to authorize payment of this third invoice requires Council to authorize in effect a second increase in Procure America's NTE amount to a new NTE amount of $85,187.68 which is a $35,187.68 or 68.6% increase over the original NTE amount of $50,000. PROCURE AMERICA TOTAL COMPENSATION SCHEDULE 1 Initial Payments calculated as 1 % of City's Gross Annual Spend on Gas and Electric Utility Bills of $7,161,056 First Initial Payment on April 20, 2016 $49,346.57 Second Initial Payment on August 2, 2016 20,762.12 Third and Final Initial Payable: Invoice #6-1603b 1,501.87 Total $71,610.56 SCHEDULE2 Subsequent Payments calculated as 40% Share of Electric Utility Cost Savings for a 3 -year Period First Subsequent Payable: Invoice #6-1603b $13,577.12 Total $13,577.12 Grand Total $85,187.68 As indicated in the above table, this third payment would be the final payment on the amount owed Procure America under Schedule 1 Compensation. However, Procure America will continue to submit Schedule 2 Compensation invoices to the City for payment on a quarterly cycle for the duration of the contract. Staff will also continue to request Council to approve the necessary increases in Procure America's contract NTE amount in order to authorize subsequent payments to Procure America. All payments to Procure America are funded by the City's electric utility cost savings generated under this energy -efficiency initiative. For example, the funds to pay for the recommended action comes from $35,444.66 in savings generated from January 7 through May 6, 2016 by electric service account # 3-005-2303-50 at Centennial Park Dan Young Soccer Fields located at 3000 W. Edinger Avenue. As shown in Exhibit 1, and per the agreement, 100% of initial savings are used to pay Procure America Schedule 1 compensation of $1,501.87 leaving a balance of $35,444.66 less $1,501.87 or $33,942.79. Schedule 2 compensation is calculated as 40% of $33,942.79 or $13,577.12. Procure America generates these cost savings by identifying electric service accounts eligible for a rate review and requesting Southern California Edison (SCE) to 29A-2 Payment Authorization To Procure America For Electrical Utility Cost Reduction Services December 20, 2016 Page 3 adjust rates as applicable. The cost saving is the difference between the higher electric bill under the old rate and the lower electric bill under the new rate. Since savings are used to compensate Procure America, City staff verifies reported savings by reviewing relevant SCE electric bills and other documents using an audit procedure that has been vetted by the City's Finance Department before payments to Procure America are approved. STRATEGIC PLAN ALIGNMENT Approval of this item supports Strategic Plan Goal #4 - City Financial Stability, Objective 3 (Maintain a structurally balanced budget with appropriate reserve levels), and Strategy 3D (Establish a committee of City staff to explore innovative revenue and cost recovery strategies). FISCAL IMPACT Funds are budgeted and available in fiscal year 2016-17 in the following account: Parks, Recreation and Community Services Park Maintenance 01113250-62000 $15,078.99 APPROVED AS TO FUNDS AND ACCOUNTS: Gerardo Mouet Francisco Gutierrez Executive Director Executive Director Parks, Recreation and Community Finance and Management Services Agency Services JA/WN Exhibits: 1. Payment Distribution 11/30/16 for Invoice #6-1603b 29A-3 29A-4 City of Santa Ana Procure America Invoice 6-1603b Payment Distribution Page 1 of 1 Finance & Management Services Agency Facilities & Fleet Management 30 -Nov -2016 Dept Division SCE Account Address Description Charge Number Account Invoiced Amount PRCSA Park Maintenance 3-005-2303-50 3000 W. Edinger Avenue Dan Young Complex $15,078.99 SUBTOTAL 01113250-62000 $15,078.99 TOTAL - PRCSA $15,078.99 GRAND TOTAL $15,078.99 EXHIBIT 1 29A-5 29A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: DONATION AGREEMENT WITH AMERICAN CANCER SOCIETY, INC. TO SUPPORT A RELAY FOR LIFE EVENT (STRATEGIC PLAN NO. 5, 4) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with American Cancer Society, Inc. for a one-time donation amount of $1,000, subject to non -substantive changes approved by the City Manager and the City Attorney. DISCUSSION On August 4, 2015, City Council adopted Resolution 2015-042, establishing a City Special Event Sponsorship Policy and Guidelines for Disbursement of Discretionary Funds. The resolution and policy outline the eligibility criteria for neighborhood associations and eligible non-profit entities for consideration of City Council sponsorship. In accordance with this policy, each Councilmember is allowed to appropriate up to $10,000 per fiscal year to support eligible organizations, including neighborhood associations and non-profit organizations. Eligible organizations that are not tax exempt under section 501(c)3 of the Internal Revenue Code are eligible for in-kind funding for City Services. Councilmember Tinajero recommends appropriating $1,000 to American Cancer Society, Inc. to support a Relay for Life event that will be held on Saturday, April 22, 2017, in response to their donation request (Exhibit 1). Upon approval of this item, a donation agreement (Exhibit 2) will be executed. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (support neighborhood vitality and livability). 2913-1 Donation Agreement with American Cancer Society, Inc. December 20, 2016 Page 2 FISCAL IMPACT Funds to support the City Council Special Event Sponsorship Policy are available in the Fiscal Year 2016-17 General Non -Departmental account (01105015-62300). The $1,000 will be spent from Councilmember Tinajero's appropriated amount for FY 2016-17. APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency Exhibits: 1. Donation Request Form 2. Donation Agreement 29B-2 1Ih, City of Santa Ana Donation Request Danny Garza 1522 W Washington Ave State, zip: ISanta Ana, CA 92706 Name: ..--�- adxgarza@yahoo.com City Manager's Office — M-91 20 Civic Center Plaza P.O. Box 1988 Santa Ana, QA 92702 (714) 847.5200 The American Cancer Society 1940 E Deere Ave, #100, Santa Ana, CA 92705 Status: Is your organization a non-profit or public tax-exempt organization as (Select One: l❑ Section 501(o)(3) of the Internal Revenue Code? Yes No If No, you will only qualify for a credit for City -related costs for your request I'Le, permit fees, If Yes, ;tall time, rental rates forfacllities or equipment, etc.).Costs for City services vary and If approved, credit may or may not cover full cost of requested City services. ITax ID 9: rices Credit Requested: ayment Amount Location: B City, State, Zip Description of Event/Purpose: Community Benefit: Needed: 1000,00IlEventDate; it 04-22-2017 ;Event Time: Santa Ana College 1630 W 17th Street Santa Ana, CA 92706 13-1788491 12:00 pm The American Cancer Society Relay for Life event is a life -changing experience that gives everyone a moment to Celebrate the lives of people who have battled cancer, remembered loved ones lost, and "Fight Back" against the disease. Funds raised go to research, transportation to and from treatment, Hope Lodge facilities to provide a comfortable place for patients and their caregivers to stay so ttlrery can stay ffle.free or at a reduced rate se they can focus on getting well. Cancer has touched so m2ny peopfe In our community and the Relay for Life event Is so Inspiring, uplifting, and is a great way :c help fight d this disease.'fhe A!dericen Can r Society, proilides information, programa, and services that are available to patients and caregivers, This is also a groat oppdto let ,our brave fighters and caregivers know that they are not alone, they can get educational resources to help them on theirjournk tjiey can also meet otporfighters and caregivers. t,G ' '' `�'f - �gu tr �' s r",�'v n-,7�zn`�t i I `ti'd', �"n 's' vf'Q2m Or NOR`t�' ,+ , ,E ,�[I{fiiitiY� > s e k „. d { t r .,. , s,tfir F a,,,,d k Mail: City Manager's Office—M-31 20 Civic Center Plaza P.Q. Box 1988 Santa Ana, CA 92702 Email: donationrequest@santa-ana.org Fax: (714) 647-6954 Revised 11/1612015 r•- CITY OF SANTA ANA DONATION AGREEMENT WITH AMERICAN CANCER SOCIETY, INC. 1. PARTIES AND DATE This Donation Agreement ("Agreement") is entered into on DECEMBER 20, 2016 by and between the City of Santa Ana, a municipal corporation ("City") and AMERICAN CANCER SOCIETY, INC., a California 501(c)3 NON-PROFIT ORGANIZATION ("Recipient"). City and Recipient are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement. 2. RECITALS 2.1 Community Benefit. The City wishes to provide Recipient with funding to assist Recipient in HOSTING A RELAY FOR LIFE EVENT ("Community Benefit"), The Parties wish to enter into this Agreement to establish the terms and conditions under which the City will provide funding. 2.2 Public Purpose. The City, by recommendation of COUNCILMEMBER SAL TINAJERO, believes there is a public purpose in supporting the Community Benefit because it will PROVIDE A HEALTH AND WELLNESS OPPORTUNITY THAT WILL INCLUDE INFORMATION, PROGRAMS, AND SERVICES FOR CANCER PATIENTS, CAREGIVERS, AND THEIR FAMILIES. The foregoing is a general description of the public purpose, and is not necessarily the only public purpose to be gained from the Community Benefit, 3. TERmL S AND CONDITIONS 3.1 Use of Funds. The City has chosen to provide Recipient with a one-time payment of ONE THOUSAND DOLLARS ($1,000) for an event that will be held on Saturday, April 22, 2017, because the City has determined that there is a public purpose to be served in supporting the Community Benefit. In execrating this Agreement and receiving the Rinds, Recipient. agrees to use the hinds only for the purpose described and subject to the teens and conditions provided for in this Agreement. Should Recipient fail to use the finds for such purpose or otherwise comply fully with the terns of this Agreement, City shall have the right to terminate this Agreement and demand the return of the funds pursuant to Section 3.2 below. 3.2 Tenn; Termination of Agreement. This Agreement shall take effect on the date first above written and remain in effect through Recipient's fiill expenditure of the funds. The City has the right to terminate this Agreement upon one day's notice, with or without cause. Should the City terminate this Agreement, it shall also have the right to demand the immediate return of all Rinds provided to Recipient pursuant to this Agreement, as well as interest at the rate of ten percent (10%) per annum. Notwithstanding the foregoing, the indemnification provisions of this Agreement shall survive any expiration or termination of this Agreement. EXHIBIT 2 r•- CITY OT SANTA ANA. DONATION AGREEMENT Page 2 of 3 3.3 Waivers, Insurance or Other Obligations. For purposes of the City's protection, if the City determines that the funds will be used for a purpose which may cause a significant risk of injury, the City may, in its sole discretion, require Recipient to provide certain insurance and participant waiver/release protections. This right shall be on-going and may be implemented by the City at any time, and all insurance and waiver/release forms shall be provided on forms, in amounts and with provisions acceptable to City. 3.4 No Oversight by City. Nothing in this Agreement shall be implied or interpreted as City establishing or providing oversight, control or approval of the Community Benefit or any activities conducted by the Recipient. 3.5 Indemnification. Recipient understands, acknowledges and agrees that Recipient shall assume all risks associated with the Community Benefit, including, but not limited to, the possibility of death or serious traruna or injury. To this end, therefore, Recipient shall defend, indemnify and hold City and its officials, officers, employees, agents and volunteers free and harmless from and against any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any and all acts, omissions, willful misconduct or other activities of the Recipient or its officials, officers, employees, agents, guests, participants attendees, and contractors, including the performance of the Community Benefit or this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. The only exception to the Recipient's obligations hereunder shall be for claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries caused by the sole negligence, sole willfid misconduct or sole active negligence of the City. Recipient shall defend, at Recipient's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, employees, agents, or volunteers. Recipient shall pay and satisfy any judgment, award or decree that may be rendered against the City or its officials, officers, employees, agents, or volunteers, in any such suit, action or other legal proceeding. Recipient shall reimburse City and its officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Recipient's obligation to indemnify shall not be restricted or limited by insurance proceeds, if any, received by the City, its officials, officers, employers, agents or volunteers. The indemnification provisions of this Agreement shall survive any expiration or termination of this Agreement. 3.6 Entire Contract/Modification. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. The terms and conditions of this Agreement may be altered, modified or amended only by written agreement signed by both Parties. 3.7 Authority to Enter Agreement. The person executing below on behalf of Recipient represents and warrants that the Recipient has all requisite power and authority to conduct its business and to execute, deliver and perform this Agreement. Each. Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agreement bind each respective Party. EXHIBIT 2 r•- CITY OF SANTA ANA DONATION AGREEMENT Page 3 of 3 RECOMMENDED FOR APPROVAL 0 Robert C. Cortez Deputy City Manager City Manager's Office CITY OF SANTA ANA By: David Cavazos City Manager Attest: By: Maria D. Huizar Clerk of the Council Approved as to Form: By: 7g, -F J6fin M. Funk Assistant City Attorney AMERICAN CANCER SOCIETY, INC. a 501(c)3 NON-PROFIT ORGANIZATION m EXHIBIT 2 29B-7 Signature Name Title REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: CONDITIONAL USE PERMIT NO. 2016-36 AND VARIANCE NO. 2016-07 TO ALLOW THE TWO THUMBS UP CAR WASH AT 4412 WESTMINSTER AVENUE — JAMES GARTNER, APPLICANT (STRATEGIC PLAN NO. 3,2) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: F.T570041WE ® As Recommended 71 As Amended ® Ordinance on 1" Reading ® Ordinance on 206 Reading [I Implementing Resolution ® Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2016-36 as conditioned and Variance No. 2016-07 as conditioned. PLANNING COMMISSION ACTION At its regular meeting on November 28, 2016, by a vote of 6:0 (Gartner abstained), the Planning Commission adopted a resolution approving Conditional Use Permit No. 2016-36 to allow the construction of an automatic car wash and Variance No. 2016-07 as conditioned for a reduction in required setbacks and to allow the building to exceed the allowable height at 4412 Westminster Avenue located in the General Commercial (C-2) zoning district. The Planning Commission added a condition of approval to require the planting of vines and Italian Cypress trees on the mobile home (south) side of the block wall that will be built to separate the car wash from the mobile home park (Exhibit A). DISCUSSION The applicant is requesting approval to construct a 4,900 -square -foot automatic car wash building and a 1,000 -square -foot office building. The car wash structure will be located at the southernmost section of the site and is designed to allow access to the car wash from a driveway on Westminster Avenue. An additional driveway is proposed on Newhope Street that will be used for exiting purposes only. A single pay point, with a stacking lane of approximately 100 feet, will be provided. The architectural style of the building is contemporary in nature with a variety of materials including colored glass panels, aluminum storefronts, concrete masonry units and horizontal aluminum reveals to be utilized. The roof of the building will be curved to add visual interest, with anodized aluminum frames used on all windows and doors. The canopies for the drying stations will utilize similar materials to those found on the car wash structure. The proposed hours of operation will be from 7:00 a.m. to 9:00 p.m. daily. 31A-1 CUP No. 2016-36 and VA No. 2016-07 — Two Thumbs Up Car Wash, 4412 Westminster Avenue December 20, 2016 Page 2 A 15 -foot landscaped setback will be provided along the Newhope Street frontage and an 18 -foot setback along the Westminster Avenue frontage. A 10 -foot high solid block wall will be constructed along the south property line to provide a buffer between the car wash and residences and minimize any noise impacting the adjacent residences. 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). FISCAL IMPACT There is no fiscal impact associated with this action. .s-yrsvy assan Haghq i, AI Executive Director Planning & Building Agency VF:rb Vt\wp51\reports\CUP 16-36 & VA 16-7 Thumbs Up Car Wash= Exhibit: A. Planning Commission Staff Report 31A-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: NOVEMBER 28, 2016 TITLE: PUBLIC HEARING — FILED BY JAMES GARTNER FOR CONDITIONAL USE PERMIT NO. 2016-36 AND VARIANCE NO. 2016-07 TO ALLOW THE TWO THUMBS UP CAR WASH AT 4412 WESTMINSTER AVENUE (STRATEGIC PLAN NO. 3,2) Prepared by Vince Fregoso Executive Director RECOMMENDED ACTION PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Planning Manageli 1. Adopt a resolution approving Conditional Use Permit No. 2016-36 as conditioned. 2. Adopt a resolution approving Variance No. 2016-07(a) as conditioned to allow a reduction in required setbacks. 3. Adopt a resolution approving Variance No. 2016-07(b) as conditioned to allow the building to exceed the allowable height. Request of Applicant James Gartner, representing 4414 Westminster Avenue LLC, is requesting approval of a conditional use permit to allow the construction of an automatic car wash facility at 4412 Westminster Avenue. Pursuant to Section 41-377.5(b) of the Santa Ana Municipal Code (SAMC), car washes require the approval of a conditional use permit in the General Commercial (C2) zoning district. Further, the applicant is requesting approval of a variance from Section 41-380 to allow a reduction in the required 15 -foot landscaped setback on Westminster Avenue and from Section 41-382 to allow the building to exceed 15 feet in height adjacent to a residential use. Protect Location and Site Description The subject site currently consists of two separate parcels of land and is approximately 1.1 acres in size. The project site is rectangular in shape and is located on the southeast corner of Westminster Avenue and Newhope Street. The western parcel is currently vacant, while the eastern parcel is occupied by an automotive repair use and a vacant retail building. EXHIBIT A 31A-3 CUP No. 2016-36 and VA No. 2016-07 November 28, 2016 Page 2 The project site has a General Plan land use designation of General Commercial (GC) and is zoned General Commercial (C2). General Commercial land use districts are key components in the economic development of the City and provide important neighborhood facilities and services, such as this car wash facility. As proposed, the project site is consistent with the General Plan and Zoning designations. The site is surrounded by commercial uses to the north, east and west, and a mobile home park to the south (Exhibits 1, 2 and 3). Prosect Description The applicant is requesting approval of a conditional use permit and two variances in order to construct a new car wash. Specifically, the project will entail the construction of two structures: A 4,900 -square - foot automatic car wash building and a 1,000 -square -foot office building. The car wash structure will be located at the southernmost section of the site and is designed to allow access to the car wash from a driveway on Westminster Avenue. An additional driveway is proposed on Newhope Street that will be used for exiting purposes only. A single pay point, with a stacking lane of approximately 100 feet, will be provided. The architectural style of the building is contemporary in nature. A variety of quality building materials including colored glass panels, aluminum storefronts, concrete masonry units and horizontal aluminum reveals will be utilized. The roof of the building will be curved to add visual interest, with anodized aluminum frames used on all windows and doors. The canopies for the drying stations will utilize similar materials to those found on the car wash structure. The proposed hours of operation will be from 7:00 a.m. to 9:00 p.m. daily. A total of 22 parking spaces, including 21 spaces equipped with vacuums, will be provided to allow patrons to dry and/or vacuum their vehicles. A 15 -foot landscaped setback will be provided along the Newhope Street frontage and an 18 -foot setback along the Westminster Avenue frontage. However, as dedication for future street widening is required for this project, the Westminster Avenue setback will be reduced to 10 feet when the widening project commences. A solid block wall ranging in height from six to 10 feet will be constructed along the south property line to provide a buffer between the car wash and residences and minimize any noise impacting the adjacent residences. Vine pockets will be incorporated into the block wall where feasible to prevent graffiti as required by the City's graffiti mitigation design guidelines (Exhibits 4 through 7). Project Backaround The subject site consists of two separate lots. The westernmost parcel of land, addressed as 4426 Westminster Avenue, has been vacant since the City annexed the land from the County. Based on a review of City records, it was once occupied by a service station. The eastern parcel of land, 4412 and 4414 Westminster Avenue, contains two buildings that were constructed in 1961. The smaller building to the west was occupied by a variety of uses, including a restaurant, bar and most recently a retail store. The larger building has been occupied by an automotive service use. 31A-4 CUP No. 2016-36 and VA No. 2016-07 November 28, 2016 Page 3 In June 2006, a conditional use permit was approved to allow the construction of a 7-11 service station and market on the western parcel. However, for unknown reasons, the project never moved forward with construction and the conditional use permit expired. Proiect Analysis Conditional Use Permit Section 41-377.5(b) of the Santa Ana Municipal Code (SAMC) allows automatic carwashes subject to the approval of a conditional use permit in the General Commercial (C2) zoning district. The conditional use permit requirement allows staff and decisional makers the ability to review each project on an individual basis to determine its compatibility with the surrounding area and apply appropriate conditions to ensure the proposed business will not negatively affect the surrounding properties or community. As part of the analysis process for the conditional use permit, staff is required to analyze a variety of issues to ensure a quality development and to provide justifications for findings needed to recommend approval as governed by Section 41-638 of the SAMC. These include the extent to which the proposed project provides a needed product or service to the community; the project will not be detrimental to the health, safety or welfare of the community; the project will not cause economic instability in the area; the project complies with the development standards contained in the City's Zoning Ordinance (SAMC Chapter 41); and that the project is in conformance with the City's General Plan. Staff also identifies any potential impacts the project may have to surrounding properties and develops appropriate conditions of approval or design considerations to minimize or eliminates those issues. After analyzing the applicant's proposal, staff is supportive of the applicant's request for a conditional use permit for the following reasons. First, the proposed automatic car wash facility will provide a service to the commercial and residential uses in the area and will prove an affordable and convenient car wash service. Although a car wash is located to the east of the proposed project, it is a coin-operated facility that offers minimal services to customers. The proposed car wash will offer additional services (enhanced washing and vacuuming) that are not found in the immediate area. Second, conditions of approval have been included that will result in a project that will not be a detriment to persons residing or working in the vicinity. For instance, vehicles will not be permitted to access the site from Newhope Street, which will minimize impacts to the surrounding arterial street system. And, the car wash has been designed to minimize potential impacts to vehicles travelling on Westminster Avenue and Newhope Street by locating the driveway away from the intersection and by providing an internal stacking area that has been designed to minimize impacts to the street system. Further, a condition requiring a solid block wall between six and 10 feet in height at the south property line adjacent to the mobile home will minimize any potential noise impacts created by the car wash use. Third, the proposed use will assist in identifying the site as 31A-5 CUP No. 2016-36 and VA No. 2016-07 November 28, 2016 Page 4 viable location to operate a business and will revitalize vacant and underutilized parcels of land. Of the two project parcels, one has been vacant for over 15 years, with the other parcel containing a vacant building. Development of this site will identify this area of the City as an opportunity area for investment. Fourth, the proposed project will be in compliance with all applicable regulations and provisions of Chapter 41 of the Santa Ana Municipal Code, with the exception of front yard setbacks and building height, which the applicant is requesting a variance to obtain relief from these standards. All other provisions of the Code will be complied with, such as landscaping, trash enclosure, handicap path of travel and lighting will be provided to bring the site into compliance with code. Finally, the proposed use will not adversely affect the General Plan. Land Use Element Policy 2.2 supports commercial land uses in adequate amounts to accommodate the City's needs for goods and services. Land Use Element Policy 2.8 promotes rehabilitation of commercial properties, and encourages increased levels of capital investment. Urban Design Element Policy 1.5 encourages enhanced architectural forms, textures, colors and materials are expected in the design of all projects. The proposed automatic car wash will be consistent with each of these General Plan policies. Setback and Building Height Variances Santa Ana Municipal Code (SAMC) Section 41-380 requires a 15 -foot front yard landscaped setback for all properties in the General Commercial (C-2) zoning district. The applicant is requesting approval of a variance to reduce the required setback along Westminster Avenue from 15 feet to 10 feet. In addition, SAMC Section 41-382 limits commercial structures to 15 feet in height if located within 20 feet of residentially zoned or used property. As proposed, the building will be 12 feet in height adjacent to the mobile home park and 31 feet in height at its highest point when 10 feet away from the residences. Although the building will contain a step back, it will still exceed the maximum allowable height. As a result, a variance from the height standard is required. Through the variance process, the SAMC provides for the ability to vary from the development standards contained in the code where there is a condition unique to size, shape, topography, location or surroundings of the site. In this case, there are special circumstances of the subject site that would warrant a variance from the current development standards. The following outlines the unique challenge of this particular parcel of land that warrants approval of a reduction in the landscaped setback and building height standards. The project site is located on a corner lot fronting both Newhope Street and Westminster Avenue, major arterial streets as defined by the Circulation Element of the General Plan. Since the site fronts two arterial streets, a minimum setback of 15 feet is required on both frontages, which impacts the allowable footprint of the buildings. Second, the site is rectangular in shape, with the depth of the lot less than half of the lots width. Due to the linear shape of the lot, it is difficult, if not infeasible, to increase the size of the lot. There are limited options to increase the size of the lot to accommodate the car wash use without affecting neighboring properties due to the development pattern and built out environment surrounding the subject site. Third, a dedication of eight feet is 31A-6 CUP No. 2016-36 and VA No. 2016-07 November 28, 2016 Page 5 required along the Westminster Avenue frontage to accommodate future street widening. This dedication further constricts the applicant's ability to develop the site with a functional car wash use. Fourth, the design requirements of a car wash use, where the use requires minimum areas to accommodate driveways, vacuum stations and the placement of buildings, in conjunction with a lot with minimal depth, further restricts the placement of the building on the site. Finally, car wash uses typically require higher ceilings to provide adequate clearance for trucks and vehicles that will use the facility. In order to allow a car wash to be constructed on the site, an increase in the allowable height is needed. To mitigate the potential impacts associated with the car wash use, the applicant is proposing several site improvements. The strip of land to be dedicated to the City for future widening will be landscaped, thereby providing an 18 -foot landscaped setback until such time as the dedication is needed. The landscaping will also be designed in a way to be minimally affected once the land is required for street purposes. Further, the landscaping will be increased in size to provide a more mature appearance when the car wash is operational. In addition, a block wall of up to 10 feet in height will be constructed along the south property line to ensure no noise or other impacts affect the residential uses. Finally, the proposed project will comply with all other applicable development standards for the use, except for setbacks and building height. On October 24th, the Planning Commission held a public hearing on the proposed project. After receiving public input, the Commission continued the item for 30 days to allow staff and the applicant time to address concerns related to aesthetics, more specifically the height of the building, on-site circulation and noise mitigation. First, staff and the applicant met to discuss options for altering the height of the building to minimize its impact on the adjacent residential uses. Due to the unique design of the structure, and the desire to maintain elements that contribute to the overall design, the applicant intends to maintain the proposed 31 -foot building height. The applicant has agreed to remove the solar panels from the structure at the south side of the building, which will help reduce the visual impacts of the building. Additionally, the applicant is proposing to change the material on the south side of the building from glass to a solid wall, which conveys a sense of privacy to the residences while maintaining the visual appeal of the structure. To provide context of the surrounding structures and depict the compatibility of the proposed building with the adjacent uses, the applicant has provided photographs of adjacent structures (Exhibit 8). Second, staff analyzed the stacking lanes for the two automatic car washes (210 East First Street and 4426 West First Street) that were approved by the Commission. The stacking lanes for those projects ranged from 148 to 170 feet, while the proposed project has a 240 - foot long lane. After discussing the lane distance with the Public Works Agency, it was determined that the stacking lane for this project exceeds minimum standards and would not result in any impact to Westminster Avenue. Finally, staff met with the applicant's noise consultant to discuss measures that could be considered to minimize and reduce potential noise impacts. In response, the applicant's proposal to change the material on the south side of the building to a solid wall will help mitigate potential noise travelling south towards the residences. In addition, a 10 -foot high 31A-7 CUP No. 2016-36 and VA No. 2016-07 November 28, 2016 Page 6 sound wall will be built at the south property line adjacent to the residential uses, with a 10 -foot high wall proposed along a portion of the east property line that will extend for a distance of 60 feet (Exhibit 9). As proposed, these improvements will result in an enhanced project that will minimize impacts to the adjacent community. As a result, staff is recommending approval of the proposed car wash project. Public Notification The project site is located within the Riverview West Neighborhood Association. Staff contacted the president of this association, who had no concerns with the proposed project. Additionally, the project site was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to all property owners within 500 feet of the project site. At the time of this printing, staff received one call regarding the project. Staff met with the individuals to review the circulation and design of the project. CEQA Compliance In accordance with the California Environmental Quality Act the recommended action is exempt from further review per Section 15332. This Class 32 exemption allows infill development provided they are consistent with the zoning and General Plan, do not have any noise or traffic impacts, and can be served by existing utilities. The car wash facility is a new, small facility that has been found by the City's development review agencies to not create any adverse impacts. The facility is proposed to be located on a site that is not designated by federal, state, or local agencies to be an environmental resource of hazardous or critical concern. The cumulative impact of this project will not be significant as there are no other similar car wash facilities currently on or near the site, the property is already served by roads and utilities, and will not create any adverse impacts such as noise, traffic, or safety concerns. There is no reasonable possibility that the project will have a significant effect on the environment due to unusual circumstances. The project is not located within a highway officially designated as a state scenic highway and will not result in damage to scenic resources. The project is not located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code. Lastly, the project is not proposed on a site that is considered a historical resource or that is listed in the Santa Ana Register of Historic Properties. As a result, Categorical Exemption Environmental Review No. 2016-20 will be filed for this project. Strateaic 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). 31A-8 CUP No. 2016-36 and VA No. 2016-07 November 28, 2016 Page 7 Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Conditional Use Permit No. 2016-36 as conditioned and Variance No. 2016-07 (a) and (b) as conditioned. Vince Fregoso, AICP Principal Planner VF:jm V6wp5lVeportslCUP 16-36 & VA 16-7 Thumbs Up Car Wash.112616.pc Attachments: Exhibit 1 — Vicinity Map Exhibit 2 — Land Use Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan Exhibit 5 — Floor Plan Exhibit 6 — Building Elevations Exhibit 7 — Landscape Plan Exhibit 8 — Photographs from Adjacent Mobile Home Park Exhibit 9 — Project Renderings 31A-9 WESTMINSTER AVE. '71P 2 C21p- /�{ ,'CASSC��LLI 2 Q •♦l +'y x it RI 1 Al Pia RI RI jl 11 1 PI Rl - Ir p Al RI it RIPI fll fll .ter RI ' y, 5p-2 • nRl r PI RI RI R1 RI RIRI _ RI RI R2 .*r ; RI RI PI RI R, RI w R1 l H0.IAM AV sDs] R1T I:. 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Al CJ31@gLAWOA lj GR a W,Mg;�L RI 91,13EFaM,LYfexamL .R GNFNWm ncAG ! cc R2 NO LYPHDa4M O9A O MSCKSYJM1IMAN MI W KXSMAL W MUL11PLFO NMWPLE G COMMUMNDOMM@Del M2 ,iN/YMJGbTflPt F LY CIAT DCMM.¢MJE♦7A %%L AM9RRGT MO MIDWRGCFEiN110N9 Po 9BJ18ARARVR em C2 GHI@NLQ7AM@UAL O Q' d9RMF w FESOKUL OXIE m CRMAL@BM P PRXEZOl w SH DEMO !T 6A D@J1 VJWP.GAAISGvU fC0 RAM9lO UMT'DL4HtYM@rT 9 9i'�FlCFUW G RPNR®9MRRNG�l1Bt RV RAN�Ia�O@JIIALCP90RA@JT (5 ARIERALp3.IMBaAL ds!N CUP 2016-36/VA 2016-07 A TWO THUMBS UP CAR WASH dc" 4412 WESTMINSTER AVENUE i"=IWDFFI£TT P L A N N I N G A N D B U I L D I N G A G E -NC Y VICINITY MAP EXHIBIT 1 31A-10 CUP 2016-36NA 2016-07 kAi TWO THUMBS UP CAR WASH 4412 WESTMINSTER AVENUE S' P L A N N I N G A N D 8 U I L O I N G A G E N C Y LAND USE MAP EXHIBIT 2 31A-1 1 ING 1 E- A AI 1 L V P F 5 I N i N C F h 6 p M al f R CI A l N C M M F R C 9 l C O M M F R C I A l V A C A N WESTMINSTER AVENUE 1 R 1 O M RI f R E A L 1 C cM AI F C! A t i 1 6 1 = Z F AI O 8 1 L E H O AI E P A A R 1 .A O T U 11 1 1 CUP 2016-36NA 2016-07 kAi TWO THUMBS UP CAR WASH 4412 WESTMINSTER AVENUE S' P L A N N I N G A N D 8 U I L O I N G A G E N C Y LAND USE MAP EXHIBIT 2 31A-1 1 CUP 2016-36 & VA 2016-07 TWO THUMBS UP CAR WASH 4412 WESTMINSTER AVENUE EXHIBIT 3 31A-12 31A-13 '; O 'p' , ", !, I ; Y1. ; 14 5 v M, xv D SSMU (goo qp�uy U 4,T 66 "o Ip 40[Air'( - tRx' 0 rr- C) 'C' 0, Ell CY oal L EXHIBIT 4 31A-13 EXHIBIT 5 31A-14 EXHIBIT 6 Page 1 of 4 31A-15 G � i ii as 1 !^ II � I!1 F I i I 1 i � 1 I i i } 1 P� fY 77 1pp 1 � 3 _ sd1�a�Ss�s5f EXHIBIT 6 Page 1 of 4 31A-15 Page 2 of 4 31A-16 ,svm WD SS78dk3 fA Page 2 of 4 31A-16 Page 3 of 4 31A-17 H S 4 b4 Jt l S S] Ha Y 9 Ln gI 4 2 El El ( Y 4° P 7} z e jg � � 1k S yy¢aPt sp Page 3 of 4 31A-17 �'• �i��.,�' I I xu51 U X "'.)tiNdX3 f HV"'.) sv 3 � f� L "i,l ♦ \ 7 Y s r z R Sr f pgg' � tit b ♦ �l ♦ GYM ' O , I I �� rr .b e � }x _ I z " I , n f ri i 1 i p Page a of a 31A-18 EXHIBIT 8 CUP 2016-36NA 2016-7 VIEW OF SURROUNDING STRUCTURES FROM MOBILE HOME PARK 31A-20 Page 2 of 3 31A-22 Page 3 of 3 31A-23 LS 11.28.16 RESOLUTION NO. 2016-41 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2016-36, AS CONDITIONED, TO ALLOW A CAR WASH AND VARIANCE NO. 2016-07, AS CONDITIONED, TO ALLOW A REDUCTION IN SETBACKS AND AN INCREASE IN BUILDING HEIGHT AT THE PROPERTY LOCATED AT 4412 WESTMINSTER AVENUE BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Conditional Use Permit No. 2016-36 to allow the construction of an automatic car wash at 4412 Westminster Avenue. B. Santa Ana Municipal Code Section 41-377.5(b) requires approval of a conditional use permit for car washes in the General Commercial (C-2) zoning district. C. Santa Ana Municipal Code Section 41-380 requires a 15 -foot landscaped setback along any street frontage in the General Commercial (C-2) zoning district. D. Santa Ana Municipal Code Section 41-382 requires a building to be setback a minimum of 20 -feet if it exceeds 15 -feet in height and is adjacent to a residentially zoned or used property in the General Commercial (C-2) zoning district. E. On October 24, 2016, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2016-36 and Variance No. 2016- 07. The Planning Commission continued Conditional Use Permit No. 2016-36 and Variance No. 2016-07 to November 28, 2016. F. The Planning Commission of the City of Santa Ana determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code Section 41- 638, have been established for Conditional Use Permit No. 2016-36 to allow the construction of an automatic car wash: Resolution No. 2016-41 Page 1 of 11 31A-24 1. That the proposed use will provide a service or facility which will contribute to the general well-being of the neighborhood or community. The proposed automatic car wash facility will provide a service to the community. The proposed car wash is a use that will support the adjacent commercial and residential uses in the area. This will thereby benefit the community by providing affordable and convenient car wash service with easy access from two major arterial streets. The automatic car wash service will provide a convenient and local option for car wash patrons. 2. That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. The proposed automatic car wash facility will not be detrimental to persons residing or working in the vicinity because the car wash has been designed to minimize potential impacts to vehicles travelling on both Westminster Avenue and Newhope Street. The internal stacking area adjacent to the streets is a minimum of 100 feet prior to entering the pay point. A minimum eight -foot high solid block wall will be provided at the south property line to minimize any potential noise impacts created by the drying machine and vacuums. Additionally, conditions of approval to restrict the hours of operation and outdoor speakers have been incorporated to mitigate potential adverse impacts from occurring on the premises. 3. That the proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. The proposed use will not adversely affect the economic stability of the area, but will identify the site and area as a viable location to operate a business. The lot shape has constrained its development opportunities, with the relatively deteriorated nature of the surrounding properties also constraining the property's marketability. The construction of a high quality building in conjunction with the on and off-site improvements will enhance the economic viability of the area. The proposed project will identify this area as available for further economic development, with the proposed car wash facility providing an affordable and convenient car wash service that will attract patrons to the Resolution No. 2016-41 Page 2 of 11 31A-25 area. This will in turn benefit and enhance the economic stability of the area. 4. That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. The proposed project will be in compliance with all applicable regulations and provisions of Chapter 41 of the Santa Ana Municipal Code with the exception of setbacks and height, which the applicant is proposing to obtain a variance from these standards. Site improvements are proposed to bring the site into compliance with the remaining provisions of the zoning code. On-site landscaping will be provided according to the current standards. In addition, amenities such as a new trash enclosure, a handicap path of travel and lighting will be provided to ensure the project is in compliance with code. Finally, new on-site improvements will be made to ensure the facility complies with local, regional and federal water quality standards. 5. That the proposed use will not adversely affect the General Plan of the city or any specific plan applicable to the area of the proposed use. The proposed use will not adversely affect the General Plan but is consistent with several goals and policies of the document. Goal 1 of the Land Use Element encourages uses that promote a balance of land uses that address basic community needs, Goal 3 supports projects that improve the character and integrity of neighborhoods, and Goal 5 ensures that the impacts of development are mitigated. Land Use Element Policy 2.2 supports commercial land uses in adequate amounts to accommodate the City's needs for goods and services. Land Use Element Policy 2.8 promotes rehabilitation of commercial properties, and encourages increased levels of capital investment. Urban Design Element Policy 1.5 encourages enhanced architectural forms, textures, colors and materials are expected in the design of all projects. The proposed automatic car wash will be consistent with each of these General Plan policies. G. The Planning Commission of the City of Santa Ana determines that the following findings, which must be established in order to grant this Variance pursuant to Santa Ana Municipal Code Section 41-638, have been established for Variance No. 2016-07 to allow a reduction in landscaped setbacks and an increase in the allowable building height: Resolution No. 2016-41 Page 3 of 11 31A-26 1. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, that the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this Chapter. The project site has a special circumstance related to its size, shape and location. Due to the site being surrounded by development, and the unique rectangular shape of the lot, the applicant is unable to obtain additional land to build a structure that can meet the setback standards and be lower in height. Also, it is infeasible to construct a car wash facility with a ceiling height that meets code due to the type of trucks and vehicles that will need access to the facility. As a result, special circumstances exist that warrant a variance. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. Allowing the buildings to be constructed with a reduced setback and height variance will allow the owner the ability to construct a new car wash on partially vacant and underutilized parcels of land. Shifting the building to comply with the height standard would significantly reduce the ability to construct a car wash, which impacts the property rights of the owners. The strict application of the standards would also result in an impact to the vacuum station area and internal circulation pattern of the site, which would make the car wash unfeasible at this location. Therefore, the granting of the variance is necessary for the preservation and enjoyment of substantial property rights and will preserve the property owners right to develop a vacant and underutilized properties with a use that is allowed in the zoning district and will assist in revitalizing the area, which preserves the property owners right to upgrade and develop their property. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The granting of the variance will not be detrimental to the public or surrounding properties as the building and site have been designed to comply with all applicable development standards except for the landscape and height Resolution No. 2016-41 Page 4 of 11 31A-27 setbacks. The new building and related site improvements such as new landscaping will enhance this property as well as the surrounding properties. The proposed building has been designed to minimize operational impacts to surrounding properties, including the adjacent residential properties, through site design and conditions of approval. The project site has been previously used as a service station, auto repair and as a commercial building, which met none of the City's development standards. The site's lot size has constrained its development opportunities and the relatively deteriorated nature of the surrounding properties also constrained the property's marketability. The proposed project will make a substantial capital investment with the construction of a high quality building and significant on and off-site improvements, thereby improving the surrounding properties 4. That the granting of a variance will not adversely affect the General Plan of the City. The project will not adversely affect the general plan as the proposed car wash use is a permitted use in the General Commercial land use designation. In addition, the project is consistent with several goals and policies of the General Plan. Goal 1 of the Land Use Element encourages uses that promote a balance of land uses that address basic community needs, Goal 3 supports projects that improve the character and integrity of neighborhoods, and Goal 5 ensures that the impacts of development are mitigated. Policy 1.10 encourages the location of commercial uses at arterial roadway intersections in commercial districts, Policy 2.2 supports commercial land uses in adequate amounts to accommodate the City's needs for services, Land Use Element Policy 2.8 promotes the rehabilitation of commercial properties and encourages increased levels of capital investment, Policy 2.10 supports new development which is harmonious in scale and character with existing development in the area, and Urban Design Element Policy 1.5 encourages projects that include enhanced architectural forms, textures, colors and materials. The car wash facility is consistent with these goals and policies and has been designed to provide architectural and visual interest to the site and adjacent community. The project will also incorporate a generous amount of enhanced landscaping along both the Westminster Avenue and Newhope Street frontages and throughout the site. Resolution No. 2016-41 Page 5 of 11 31A-28 H. In accordance with the California Environmental Quality Act the recommended action is exempt from further review per Section 15332. This Class 32 exemption allows infill development provided they are consistent with the zoning and General Plan, are on a project site of no more than five acres surrounded by urban uses, do not have any noise or traffic impacts, and can be served by existing utilities. The car wash facility is a new, small facility that has been found by the City's development review agencies to not create any adverse impacts. The facility is proposed to be located on a site that is not designated by federal, state, or local agencies to be an environmental resource of hazardous or critical concern. The cumulative impact of this project will not be significant as there are no other similar car wash facilities currently on or near the site, the property is already served by roads and utilities, and will not create any adverse impacts such as noise, traffic, or safety concerns. There is no reasonable possibility that the project will have a significant effect on the environment due to unusual circumstances. The project is not located within a highway officially designated as a state scenic highway and will not result in damage to scenic resources. The project is not located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code. Lastly, the project is not proposed on a site that is considered a historical resource or that is listed in the Santa Ana Register of Historic Properties. As a result, Categorical Exemption Environmental Review No. 2016-20 will be filed for this project. 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 Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2016-36 as conditioned in Exhibit A attached hereto and incorporated herein, and Variance No. 2016-07 as conditioned in Exhibit B attached hereto and incorporated herein, for the project located at 4412 Westminster Avenue. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Planning Commission Action dated October 24, 2016, and exhibits attached thereto; and, the Request for Planning Commission Action dated November 28, 2016, and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. Resolution No. 2016-41 Page 6 of 11 31A-29 ADOPTED this 28th day of November, 2016. AYES: Commissioners: Alderete, Bacerra, Bauer, McLoughlin, Mendoza, Verino (6) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: Gartner (1) Lynnette Verino Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney Bv: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, ROSA BARELA, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2016-41 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on November 28, 2016. Date: Acting Recording Secretary City of Santa Ana 31A-30 Resolution No. 2016-41 Page 7 of 11 EXHIBIT A Conditions of Approval Conditional Use Permit No. 2016-36 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 belowrip or to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. 1. All proposed site improvements must conform to the Site Plan Review approval of DP No. 2015-66. 2. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. Prior to approval of Certificate of Occupancy, all on-site improvements shall be made in accordance with the submitted plans. 4. Hours of operation shall be limited to 7:00 a.m. to 9:00 p.m. seven days a week. 5. Roll -up doors shall be provided to restrict access to the car wash tunnel during non-operating hours. 6. Vacuuming equipment shall not be available or functional during non-operating hours. 7. Prior to approval of Certificate of Occupancy, all on-site signage including directional signage shall be submitted for review and approval and shall be under separate permit. 8. On-site employees shall be responsible for the removal of all litter and trash from the site each day. 9. Inoperable or malfunctioning equipment shall be repaired or replaced in a timely manner. Resolution No. 2016-41 Page 8 of 11 31A-31 10. Landscaping shall be maintained in compliance with the submitted plan including all parkways and street trees. Any modifications to this plan shall be submitted to the Planning Division for review and subject to the approval of the Planning Manager. 11. Prior to submittal into building plan check, a final landscape plan shall be submitted for review and approval. The landscape plan shall incorporate an increase in sizes of the landscape palette to 24 -inch box trees, 15 -gallon shrubs and 5 -gallon ground cover. In addition, vines and Italian Cypress Trees shall be planted on the mobile home side (south) of the block wall that will be built to separate the car wash from the mobile home park. 12. There shall be no overnight parking of vehicles on site. 13.There shall be no exposed neon lighting of any kind on either the building, parking lot canopies or in the windows. 14. Customer restrooms shall be locked during all non-operating hours. 15.There shall be no outdoor speakers or any other sound amplifying devices installed on the site. 16. Prior to issuance of building permits, a voluntary lot merger shall be applied for, be approved and be recorded with the County Recorder's office. Resolution No. 2016-41 Page 9 of 11 31A-32 EXHIBIT B Conditions of Approval Variance No. 2016-07 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 belowrip or to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the variance. 1. All proposed site improvements must conform to the Site Plan Review approval of DP No. 2015-66. 2. Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. Prior to approval of Certificate of Occupancy, all on-site improvements shall be made in accordance with the submitted plans. 4. Hours of operation shall be limited to 7:00 a.m. to 9:00 p.m. seven days a week. 5. Roll -up doors shall be provided to restrict access to the car wash tunnel during non-operating hours. 6. Vacuuming equipment shall not be available or functional during non-operating hours. 7. Prior to approval of Certificate of Occupancy, all on-site signage including directional signage shall be submitted for review and approval and shall be under separate permit. 8. On-site employees shall be responsible for the removal of all litter and trash from the site each day. 9. Inoperable or malfunctioning equipment shall be repaired or replaced in a timely manner. Resolution No. 2016-41 Page 10 of 11 31A-33 10. Prior to submittal into building plan check, a final landscape plan shall be submitted for review and approval. The landscape plan shall incorporate an increase in sizes of the landscape palette to 24 -inch box trees, 15 -gallon shrubs and 5 -gallon ground cover. 11. Landscaping, once installed, shall be maintained per the approved landscape plan. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy and per the approved plan. 12. The required trees shall be upgraded to 24 -inch boxed size and shrubs shall be upgraded to 5 -gallon size throughout the project. 13. Vine pockets shall be planted on the block wall that is located on the south property lines. In addition, vines and Italian Cypress Trees shall be planted on the mobile home side of the block wall that will be built to separate the car wash from the mobile home park. 14. There shall be no overnight parking of vehicles on site. 15.There shall be no exposed neon lighting of any kind on either the building, parking lot canopies or in the windows. 16. Customer restrooms shall be locked during all non-operating hours. 17.There shall be no outdoor speakers or any other sound amplifying devices installed on the site. Resolution No. 2016-41 Page 11 of 11 31A-34 N • LIIII II10 Lei I• CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: CONDITIONAL USE PERMIT NO. 2016-27 TO ALLOW A 60 -FOOT HIGH WIRELESS COMMUNICATIONS FACILITY FOR SBA COMMUNICATIONS AT 2700 SOUTH FAIRVIEW STREET - VIRTUAL SITE WALK, APPLICANT {STRATEGIC PLAN NOS. 3, 2, 51 CITY MANAGEOZ CLERK OF COUNCIL USE ONLY; ❑ As Recommended ❑ As Amended ❑ Ordinance on la` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2016-27 as conditioned. PLANNING COMMISSION ACTION At its regular meeting on November 28, 2016 by a vote of 7:0, the Planning Commission adopted a resolution approving Conditional Use Permit No. 2016-27 as conditioned to renew the existing 60 -foot high major wireless communications facility disguised as a pine tree (mono -pine) located at 2700 South Fairview Street located in the Light Industrial (M-1) zoning district. The Planning Commission made no changes to the recommendation outlined in the attached staff report (Exhibit A). DISCUSSION Virtual Site Walk, representing SBA Communications, is proposing to renew the entitlements of an existing 60 -foot high wireless communications facility disguised as a pine tree. This facility is intended to provide cellular coverage and call capacity in this area of the City. To give the facility the appearance of a natural tree and to blend with the existing site characteristics, the tower was designed to incorporate fronds that extend eight feet above the top of the panel antennas. Equipment for the wireless facility will continue to be contained within an enclosure that measures approximately 20 feet by 11 feet for a total of 220 square feet. Furthermore, the equipment enclosure and mono -pine are enclosed by a six-foot high metal fence and are located at the rear (southwest corner) of the property. No new or additional antennas or equipment are being installed at this time. As part of this application, the applicant will replace some of the pine tree branches that have deteriorated and faded over the years. This will refresh the site and extend the life of the mono -pine for another 10 years. Full-sized site plans are available for public viewing in the Clerk of the Council Office. 31 B-1 CUP No. 2016-27 — SBA Communications Wireless Facility at 2700 South Fairview Street December 20, 2016 Page 2 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 (leverage private investment that results in tax base expansion and job creation citywide). FISCAL IMPACT There is no fiscal impact associated with this action. Hassan Hag ni, A&P Executive Director Planning & Building Agency JG:rb WConditional Use Permit\CUP No. 2016-27 at 2700 S. Fairview St\CUP No. 2016-27.cc Exhibit: A. Planning Commission Staff Report 31 B-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: NOVEMBER 28, 2016 TITLE: PUBLIC HEARING - FILED BY VIRTUAL SITE WALK FOR CONDITIONAL USE PERMIT NO. 2016-27 TO ALLOW A 60 -FOOT HIGH WIRELESS FACILITY FOR SBA COMMUNICATIONS AT 2700 SOUTH FAIRVIEW STREET (STRATEGIC PLAN NOS. 3, 2; 3, 5) Prepared by Jerry C. __Guevara Executive Director " PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Planning Mana Adopt a resolution approving Conditional Use Permit No. 2016-27 as conditioned. Request of Applicant Virtual Site Walk, representing SBA Communications, is requesting approval of a conditional use permit (CUP) to renew an existing 60 -foot high major wireless ("mono -pine") communication facility located at 2700 South Fairview Street. Major wireless communication facilities require approval of a CUP pursuant to Section 41-198.3(b) of the Santa Ana Municipal Code ($AMC), Project Location and Site Description The existing major wireless communication facility is located on a 283,483 -square -foot (6,5 -acres) parcel of land located on the east side of Fairview Street between Warner Avenue and Segerstrom Avenue. The site is currently developed with an 119,168 -square -foot industrial building and surface parking. The General Plan land use designation for the site is Industrial (IND) and the zoning designation is Light Industrial (M-1). The wireless communications facility is consistent with the General Plan and zoning designations. The property is surrounded by industrial uses to the north, south and west, and multi -family residential to the east (Exhibits 1, 2 and 3). Project Description Virtual Site Walk is proposing to renew the entitlements of an existing 60 -foot high wireless communications facility disguised as a pine tree. This facility is intended to provide cellular coverage and call capacity in this area of the City. To give the facility the appearance of a natural tree and to blend with the existing site characteristics, the tower was designed to incorporate fronds that extend eight feet above the top of the panel antennas. Equipment for the wireless facility will continue to be contained within an enclosure that measure approximately 20 feet by 11 feet for a total of 220 square feet. Furthermore, the equipment enclosure and mono -pine are enclosed by a six-foot high metal fence and are located at the rear (southwest corner) of the property (Exhibits 4 and 5). No new or additional antennas or equipment are being installed at this time. EXHIBIT A 31 B-3 Conditional Use Permit No. 2016-27 November 28, 2016 Page 2 In August 2006, the Planning Commission approved Conditional Use Permit No. 2006-09 to allow the construction of the subject mono -pine and equipment enclosure. Pursuant to SAMC Section 41- 198.3(3), a CUP is required for all major wireless communications facilities in the City. Furthermore, Section 41-198.13 states that major wireless communications facilities shall be approved for a period not to exceed five years. Since the adoption of the City's Wireless Communication Facilities Ordinance, State legislative acts have changed and now require that cities approve wireless facilities for a period of not less than 10 years. Since the current facility is now over 10 years old, the applicant is required to apply for a new CUP in order to maintain entitlements for the wireless facility current. Project Analysis In July 1998, the City Council adopted Ordinance No. NS -2356, which established regulations for wireless communication facilities throughout the City. Major wireless communication facilities such as the SBA Communications facility are required to have a stealth design and to be located in an area that provide the greatest amount of visual screening, The existing wireless communication facility was designed as a mono -pine that exhibits consistency in tree size, character and color to that of the surrounding vegetation and it is located within a gated leased area and the ancillary electrical equipment cabinets are screened by landscape. In addition, the wireless facility is surrounded by mature trees and is at the furthermost edge of the property (southwest corner), over 500 feet from South Fairview Street. The stealth tree bark and fronds of the facility remain in place; however, the fronds have faded since the facilities construction 10 years ago. As part of this application, the applicant will replace all fronds that have deteriorated. Pursuant to provisions contained within Section 6409(a) of the Middle Class Tax Relief Act (47 U.S.G. § 1455(a)], local agencies are preempted from requiring additional screening or stealthing of the facility if such screening or stealthing was not required at the time of original construction. Staff believes that replacement of the existing fronds will enhance the appearance of the mono -pine and is in accordance with the Middle Class Tax Relief Act. Furthermore, this location is optimal to provide the coverage necessary for existing and expanding service. The existing facility will continue to provide a benefit to Santa Ana residents, businesses and motorists who subscribe to SBA Communication's services by expanding cellular and data coverage in the area. The facility will be in compliance with Federal law that governs health related Issues for wireless facilities, including safety regulations from the Federal Communications Commission (FCC) and Federal Aviation Administration (FAA). Finally, the use will continue to comply with all provisions pertaining to the construction and installation of wireless facilities identified in Chapter 41 (Zoning Code) of the SAMC. The facility will not adversely affect the General Plan as cellular facilities that are designed to be compatible with the surrounding environment are consistent with the goals and objectives of the Land Use Element, 31 B-4 Conditional Use Permit No. 2016-27 November 28, 2016 Page 3 Public Notification The project site is not located within the boundary of an established neighborhood association. A notice advertising this public hearing was posted on the project site, published in the Orange County Reporter, and notices were mailed to all property owners and occupants within 500 feet of the project site. At the time of this print, no correspondence, either written or electronic, had been received from any members of the public. CEQA Compliance In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b) (3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to renew an existing major wireless communications facility through the issuance of a new CUP. No expansion of square footage or physical land disturbances are proposed as part of this project. Categorical Exemption Environmental Review No. 2016-102 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, Objective No. 2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies) and Objective No. 5 (leverage private investment that results in tax base expansion and job creation citywide). Conclusion Baseq on theanalysis provided within this report, staff recommends that the Planning Commission aper e Condition Use Permit No. 2016-27 as conditioned. JAYry Cueva sista Planner) JGJm K: Conditional Use PermittCUP No. 201627 at 2700 5, FaMew SKUP No. 2016-27.pc Attachments: Exhibit 1 — Vicinity Map Exhibit 2 — Location Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan Exhibit 5 — Elevations 31 B-5 0 Mi lul Ml \ \ Mt 11 Mt 0 m 0 m a x AVE Al MWALAGROU:1UMQ R1 L R1 SNG.EF+MILYF l)MAL R1 1 A R1 C _ RI RI R1 R 1 R4 _ L C4 yR2-PSD OOMMEVALWUN MAIN '11, UWINDUMAL R1 MUMPECE97YMULMPLE Ci ( MMUNRYCOMMMAL M2 HEAWINDUSIRAL PROJ s ,$fTE C7 -MD CCMM.OJMMFISIAUMUS3JMLIISRNCt MO MILRARICPEi=NS m $UBU MAPARTMENTS C2 CEiERALCOMIEiIAL 0 CPFM5iiCE F€ AVE Al MWALAGROU:1UMQ CR MMMMALFMDENTAL R1 SNG.EF+MILYF l)MAL .0 R1R4NGMOOI9CAi1DN GC GDMENMEdTCeM m TMFAMILYF0004CE PSM OOMMEVALWUN MAIN M7 UWINDUMAL R1 MUMPECE97YMULMPLE Ci ( MMUNRYCOMMMAL M2 HEAWINDUSIRAL FAMILYPIMDENCE C7 -MD CCMM.OJMMFISIAUMUS3JMLIISRNCt MO MILRARICPEi=NS m $UBU MAPARTMENTS C2 CEiERALCOMIEiIAL 0 CPFM5iiCE F€ FUIMNIALESTATE 0 MIMLIKSNEES P PF,09WONAL w MRCDEhlOPMENT CM CE TMLRSNEr ARIlVMLLAGE FCD RANNE)MMMUNNYDCW.ORMEM T S- .OMCFLAN CA RANNE a3 mNGcmm RE RANNOFMIDEWIIALDMO MIENT 0 AR ALOOMMEZ7AL CUP 2016-27 "THE ALAMO" MONOPINE WIRELESS FACILITY — 2700 SOUTH FAIRVIEW STREET — =500 FffT V=1000FEF P L A N N I N G A N D B U I L D.._ING A G E N C Y EXHIBIT 1 VICINITY MAP 31 B-6 LXTJ 13 1.^ l THEALAMO"MONOPINEWIRELESSFACILITY A\ (s) 2700 SOUTH FAIRVIEW STREET cw P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31 B-7 (� X � K `^' � z�1—� � ncn CUP 2016-27 "THE ALAM[yMONUP|NEWIRELESS FACILITY 27OOSOUTH FAIRVIEW STREET EXHIBIT SITE PLAN U �� ��(6.�� � CUP 2016-27 "THE ALAMO" MONOPINE WIRELESS FACILITY 2700 SOUTH FAIRVIEW STREET EXHIBIT 4 SITE PLAN 3ft2l0 t Ya Y� f I. .—_. _............... ....._............ ....... Ti 1 FF ft n e I, 4:+ . rM)t'VNi)n;L�tS. I� •M .pc);Pvfti I �yg3 I � ygg byfi yy}�I p!n� ... tld ti b I 1 C Q �(yQWl�y zJ W CUP 2016-27 "THE ALAMO" MONOPINE WIRELESS FACILITY 2700 SOUTH FAIRVIEW STREET EXHIBIT 4 SITE PLAN 3ft2l0 CUP 2016-27 "THE ALAMU"NYVNOP|NEWIRELESS FACILITY 27OUSOUTH FAIRVIEW STREET EXHIBIT ELEVATIONS 31 B-1 1 gi mi 7 as 14 Em Im CUP 2016-27 "THE ALAMU"NYVNOP|NEWIRELESS FACILITY 27OUSOUTH FAIRVIEW STREET EXHIBIT ELEVATIONS 31 B-1 1 LS 11.28.16 RESOLUTION NO. 2016-42 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2016-27, AS CONDITIONED, TO ALLOW A 60 -FOOT HIGH WIRELESS FACILITY ON THE PROPERTY LOCATED AT 2700 SOUTH FAIRVIEW STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Conditional Use Permit No. 2016-27 to renew the entitlements of an existing 60 -foot high major wireless communications facility disguised as a pine tree located at 2700 South Fairview Street. B. Pursuant to Santa Ana Municipal Code (SAMC) Section 41-198.10, a conditional use permit is required for major wireless communications facilities established in the City of Santa Ana. C. SAMC Section 41-198.13 states that major wireless communications facilities shall be approved for a period not to exceed five (5) years, although subsequent State legislative acts have required that such facilities be approved for a period of not less than ten (10) years. D. As the current facility is now over 10 years old, the applicant is required to apply for a new CUP in order to maintain the entitlements of the facility current. E. On November 28, 2016, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2016-27. F. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a conditional use permit upon making certain findings: Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or the community? The existing 60 -foot high wireless communications facility will continue to provide a service and contribute to the community. The facility will provide a service to Santa Ana residents. businesses and motorists who subscribe to Resolution No. 2016-42 Page 1 of 5 31 B-12 Applicant's providers by providing cellular service and data coverage for its users, especially for those users traveling within the southwest sector of Santa Ana. 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The issuance of a conditional use permit to re -entitle this existing wireless communication facility located at 2700 South Fairview Street will not be detrimental to persons residing or working in the area as the facility will remain in compliance with Federal Communications Commission (FCC) and Federal Aviation Administration (FAA) safety regulations. Furthermore, Federal law exempts local jurisdictions from regulating health related issues as these issues are covered by Federal laws. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The existing wireless facility was designed to be disguised as a pine tree to complement the existing landscape and will not adversely affect the economic viability of the surrounding area. The location of the facility to the rear of the property will maintain the economic stability for this commercial and industrial area by continuing to provide a service for businesses, owners, workers, and residents in the area. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The use will continue to comply with all provisions pertaining to the construction and installation of wireless facilities in Chapter 41 (Zoning Code) of the SAMC. The existing wireless communication facility was designed as a mono - pine that exhibits consistency in tree size, character and color to that of the surrounding vegetation and it is located within a gated leased area and the ancillary electrical equipment cabinets are screened by landscape. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The wireless facility will not adversely affect the intent of the General Plan as cellular facilities that are designed to be compatible with the surrounding environment are consistent Resolution No. 2016-42 Page 2 of 5 31 B-13 with the goals and objectives of the Land Use Element. Goal 1 promotes a balance of land uses to address community needs, which includes means of communication that will be served by the mono -palm. In addition, Goals 3 and 5 require preservation of neighborhood character and integrity as well as mitigation of development impacts. The mono -pine's location minimizes visual impact on the area and assists with the screening of the equipment. Further, Policy 2.2 encourages land uses that accommodate the City's needs for services. Enhancing a cell phone provider's coverage in the area adds to the services that are readily available for business owners, workers, and residents in the immediate vicinity. G. In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to renew an existing major wireless facility through the issuance of a new CUP. No expansion of square footage or physical land disturbances are proposed as part of the project. Categorical Exemption Environmental Review No. 2016-102 will be filed for this project. 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 Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2016-27 as conditioned in Exhibit A, attached hereto and incorporated herein, for the project located at 2700 South Fairview Street. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated November 28, 2016, and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. Resolution No. 2016-42 Page 3 of 5 31B-14 ADOPTED this 28th day of November, 2016. AYES: Commissioners: Alderete, Bacerra, Bauer, Gartner, McLoughlin, Mendoza, Verino (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Lynnette Verino Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, ROSA BARELA, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2016-42 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on November 28, 2016. Date: Acting Recording Secretary City of Santa Ana 31 B-15 Resolution No. 2016-42 Page 4 of 5 WRIKIN-11111'1 Conditions of Approval for Conditional Use Permit No. 2016-27 Conditional Use Permit No. 2016-27 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. Planning Division Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 2. The proposed facility shall be maintained as per approved plans and any existing landscaping shall be well maintained for the 60 -foot wireless facility. 3. The permit applicant shall provide a 24-hour phone number to which interference problems may be reported. This condition will also apply to all existing facilities in the City of Santa Ana. 4. The permit applicant will provide a "single point of contact" in its Engineering and Maintenance Departments to insure continuity on all interference issues. The name, telephone number, fax number and e-mail address of that person shall be provided to the City's designated representative upon activation of the facility. 5. The permit applicant shall insure that lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the failure of any lessee or other users under the control of permit applicant to comply. 6. All deteriorating stealth fronds shall be replaced. 7. Conditional Use Permit No. 2016-27 expires 10 years from the date of City Council approval. Resolution No. 2016-42 Page 5 of 5 31 B-16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: CONDITIONAL USE PERMIT NO. 2016-34 TO ALLOW THE OPERATION OF A MICROBREWERY WITH A LIMITED TASTING AREA AND LIMITED DIRECT SALES TO CUSTOMERS LOCATED AT 3480 WEST WARNER AVENUE, UNIT B - SANTA ANA RIVER BREWING CO., APPLICANT {STRATEGIC PLAN NOS. 3, 2, 4) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1e' Reading ElOrdinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2016-34 as conditioned. PLANNING COMMISSION ACTION At its regular meeting on November 28, 2016, by a vote of 7:0, the Planning Commission adopted a resolution approving Conditional Use Permit (CUP) No. 2016-34 as conditioned which approved the operation of a small alcoholic beverage manufacturing facility (microbrewery) with an ancillary tasting room located at 3480 West Warner Avenue, Unit B located in the Light Industrial (M-1) zoning district. The Planning Commission made no changes to the recommendation outlined in the attached staff report (Exhibit A). DISCUSSION Santa Ana River Brewing Company is requesting approval of a CUP to allow the operation of a microbrewery with an ancillary tasting room and limited direct sales of bottles to consumers. The business will occupy an existing 2,016 -square -foot industrial tenant space, which is located at the rear building of the lot and approximately 460 feet from Warner Avenue. Proposed tenant improvements to the space by the applicant include the installation of brewing equipment, a warehouse area, walk in cooler, and a tasting area that will seat a maximum of 10 individuals and will occupy less than 20 percent or 360 square feet of the gross floor area; the remaining area will be utilized for the production and storage of alcoholic beverages The proposed hours of operation open to the public for beer tasting will be Monday through Friday from 3:00 p.m. to 9:00 p.m., and Saturday and Sunday from 12:00 p.m. to 9:00 p.m. Beer production will vary based on demand but three brew days a week are expected and brewing 31 C-1 CUP No. 2016-34 — Santa Ana River Brewing Company Microbrewery at 3480 West Warner Avenue December 20, 2016 Page 2 hours of operation will be from 7:00 a.m. to 2:00 p.m. 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, Objectives #2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies) and Objective #4 (continue to pursue objectives that shape Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination). FISCAL IMPACT There is no fiscal impact associated with this action ffasmvrva Hassan Hac ani, ACP Executive Director Planning & Building Agency JG:rb M:\Conditional Use Permit\CUP No. 2016-34 at 3480W. Warner Ave\CUP No. 2016-34.cc Exhibit: A. Planning Commission Staff Report 31 C-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: NOVEMBER 28, 2016 TITLE: PUBLIC HEARING — FILED BY SANTA ANA RIVER BREWING CO. FOR CONDITIONAL USE PERMIT NO.2016-34 TO ALLOW THE OPERATION OF A MICROBREWERY WITH A LIMITED TASTING AREA AND LIMITED DIRECT SALES TO CUSTOMERS LOCATED AT 3480 WEST WARNER AVENUE, UNIT B (STRATEGIC PLAN NOS. 3,2; 3,4) Prepared by Jerry .Guevara Executive Dire for PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Planning Ma ger RECOMMENDED ACTIONS Adopt a resolution approving Conditional Use Permit No. 2016-34 as conditioned, Request of Applicant Mike Miller, representing Santa Ana River Brewing Company (SARBC), is requesting approval of a conditional use permit (CUP) to allow the operation of a small alcoholic beverage manufacturing facility (microbrewery) with an ancillary tasting room located at 3480 West Warner Avenue, Unit B. Establishments that sell alcoholic beverages require approval of a CUP pursuant to Section 41-196 of the Santa Ana Municipal Code (SAMC). Protect Location and Site Description The applicant proposes to operate a microbrewery on a 292,930 -square -foot (6.7 -acre) industrial lot. The proposed use will be within an existing 44,000 -square -foot building, of which 2,016 square feet will be occupied by the proposed microbrewery. The site is located on the south side of Warner Avenue between Harbor Boulevard and Susan Street. The site is developed with three structures totaling approximately 113,000 square feet and provides a total of 458 parking stalls to its patrons. The General Plan land use designation for the site is Industrial (IND) and the zoning designation is Light Industrial (M1). The proposed use of the property as primarily a manufacturing facility is consistent with the intent of the City's General Plan and Zoning as these designations are intended for manufacturing and production uses. The site is surrounded by industrial uses to the north, south, west and east (Exhibits 1, 2 and 3). EXHIBIT A 31 C-3 Conditional Use Permit No, 2016-34 November 28, 2016 Page 2 Prolect Description Santa Ana River Brewing Company is requesting approval of a CUP to allow the operation of a microbrewery with an ancillary tasting room and limited direct sales of bottles to consumers. The business will occupy an existing 2,016 -square -foot industrial tenant space, which is located at the rear building of the lot and approximately 460 feet from Warner Avenue. Proposed tenant improvements to the space by the applicant include the installation of brewing equipment, a warehouse area, walk in cooler, and a tasting area that will seat a maximum of 10 individuals and will occupy less than 20 percent or 360 square feet of the gross floor area; the remaining area will be utilized for the production and storage of alcoholic beverages. In addition, the tenant space has been designed to comply with the State's Department of Alcoholic Beverage Control (ABC) regulations and standards for microbreweries (Exhibits 4 and S). The proposed hours of operation open to the public for beer tasting will be Monday through Friday from 3:00 p.m. to 9:00 p.m., and Saturday and Sunday from 12:00 p.m. to 9:00 p.m. Beer production will vary based on demand but three brew days a week are expected and brewing hours of operation will be from 7:00 a.m. to 2:00 p.m. The microbrewing Industry has grown significantly during recent years in California, to particular in the cities of Los Angeles, San Francisco and San Diego. This new trend is primarily devoted to a change in consumer behavior to provide unique blends of brews and a change from conventional brews. In the last few years, the City itself has experienced this cultural change and has approved four rnicrobreweries. Business Name Address Zoning 1. The Good' Beer Company 307 West Fourth Street SD-84/Urban Center (UC) 2. Network Brewery U 1824 East Carnegie Avenue Light Industrial (M1) 3. Cismontane Brewing Batch Plan 1409 East Warner Avenue, Units C & D Light Industrial (M1) 4. Deans Brothers Brewing Co. 9006 South Hathaway Street, Unit E Light Industrial (.M1) SARBC submitted an application for a CUP to the Planning Division in September wishing to join this list of breweries in the City. SARBC is a relatively new craft beer brewer in Orange County. The company currently does not have a commercial established location for brewing but has been home brewing for a couple of years and has over seven years of experience in the brewing industry. The company is seeking to open its first microbrewery establishment in Santa Ana. The company 31 C-4 Conditional Use Permit No. 2016-34 November 28, 2016 Page 3 specializes mainly in the production of craft hop -forward ales and currently has five line-up beers. SARBC plans to produce 1,000 barrels per year and anticipates producing 7,500 barrels by 2020. ABC restricts the number of barrels microbreweries can produce a year, which is a limit of 20,000 barrels a year. Project Analysis Conditional use permit requests are governed by Section 41-638 of the SAMC and may be granted when it can be shown that the proposed project will not adversely impact the community; If these findings can be made, then it is appropriate to grant the CUP. Conversely, the inability to make these findings would result in a denial. Staff has prepared the following analysis, which in turn forms the basis for the recommendation contained in this report. In analyzing this CUP request, staff believes that the following findings of fact warrant approval of the CUP. The Santa Ana River Brewing Company Is requesting approval of a CUP to allow the operation of a microbrewery with a tasting room. The use of the property as a manufacturing facility is permitted by right; however, the proposed tasting room and sales of beer are governed by Section 41-196 of SAMC, thus requiring this CUP. The tasting and sale of beer to consumers are intended to provide a service that is ancillary to the primary manufacturing use. This use will benefit the community by providing a unique manufacturing use with a complementary tasting area that will be open to the public to enjoy. The granting of the CUP will allow the microbrewery to compete with other microbreweries in Santa Ana and Orange County that may also offer similar services to the public and thus allowing SARBC, a local -small business, to thrive and remain economically viable. The proposed use will contribute to the evolving and growing microbrewery trend in Santa Ana and will provide consumers with unique craft beer options. In addition, tastings and sales to consumers will take place inside and within an industrial park with required parking. Furthermore, the subject property is not located near any sensitive uses such as schools and places of worship and the closest residential neighborhood is approximately 2,000 feet to the west. The proposed license will not adversely affect the General Plan. The granting of this CUP supports several policies contained in the General Plan. These include policies supporting: the provision of a diverse range of goods and services, creating a safe and attractive business environment, and encouraging development that Is compatible with nearby land uses. Finally, the proposed conditions of approval will assist in mitigating any potential impacts from this proposed establishment. Police Department Ana ysis As part of the review process for all CUPS, the Police Department reviewed SARBC application in order to ensure that the potential crime and nuisance behaviors associated with alcohol consumption and alcohol sales are mitigated to the greatest extent possible. The Police 31 C-5 Conditional Use Permit No. 201634 November 28, 2016 Page 4 Department analyzed the crime rate in the area using the standards and definitions contained In the Business and Professions Code Section 23948,4(c)(2), which are also utilized by the State Department of Alcoholic Beverage Control (ABC). This section defines 'reported crimes" as criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors, except traffic citations. The Police Department then compares the number of such crimes in the reporting district as compared to the number of crimes in other reporting districts. In keeping with the standard used by the State's ABC and Business and 'Professions Cade, should the Police Department determine that the reporting district has a 20 percent greater number of reported crimes than the average number fecund in all reporting districts, the Police Department will consider this information in making its recommendation. This business address is located in Reporting District No, 89. The number of reported crimes in District 89 is not 20 percent higher than the average number of reported crimes in all reporting districts. In addition, the Police Department contends that the proposed conditions of approval will mitigate any potential negative impacts to the surrounding community. As a result, the Police Department is supportive of the applicant's request. Public Notjfication The project site is not located within the boundary of an established neighborhood association. A notice advertising this public hearing was pasted on the project site, published in the Orange County Reporter, and notices were mailed to all property owners and occupants within 500 feet of the project site. At the time of this print, no correspondence, either written or electronic, had been received from any member of the public. CEQA Compliance In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to allow limited tastings and limited direct sales to consumers within an existing structure. No expansions of square footage or physical land disturbance are proposed as part of this project. Categorical Exemption Environmental Review No, 100 will be filled for this project. 31 C-6 Conditional Use Permit No. 2016-34 November 28, 2016 Page 5 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. 4 (continue to pursue objectives that shape Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination), Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission No. 2016-34 as conditioned. JG: jm M9Conditional Use Permit\CUP No. 2019-34 at 3480W, Warner Ave1CUP No, 2019.34.pe Attachments: Exhibit 1 — Vicinity Map Exhibit 2 — Location Map Exhibit 3 — Site Photo Exhibit 4 —Site Plan Exhibit 6 — Floor Plan 31 C-7 � '� CUP 2016-34 IIIc Ja' SANTA ANA RIVER BREWING COMPANY 3480 WEST WARNER AVENUE, SUITE B --- =5D0 FEET V= 1000 FEET P L A N N I N G A N D B U I L 0 1 N G A G E N C Y EXHIBIT 1 VICINITY MAP 31 C-8 �w �e 2� T Al — 9 M1 Ri i R1 All MIM7 ` ftt i n3 ten. P3 �Rl M1 .Mi Mi Rl Ki ml MI a ml r NnI IYY N� y� ' RI MT Ml Mi .ml r BI R1 R4 M1 Ml Mt cT.. / M7 g �"`�M1 eaa.,� CA ,Mt ) R2 -PRD i 11�, wAwuBnAM. MI ��.,.. _ I n x } 7 G iy`�J pyROJL�yn�1p' � 1 Y, a e.RIV i � w R4 pRl y m M `-- -- Z w pRi M7 I 03 MT a s t — i SEGERMOM AVE.' At MNEtALACiPoC ETUFALf CR' MMMMALF OB AL RI SNOZTANILYF 9DEKAL •B FAFNIAGPAWTICAPON W, WVFFNmmTcefTEi FQ TV0FAMILYrMMCE Gad CCMMEMALMUTHMA'.N Mi UGNTINDUSRAL w MUMFLEOM YMUME C7 CCMMUNITYNMMRDAL M2 HEAWINDUSRAL FAMILYR DEICE CWD WMM, a)MMe0AUMU33JM DISFICT' MC MU:FARYOPOMCFpS PA JJE.UaAN AFAWMEJiS C2 MCFALWMWFDAL 0 OFEETACE FE PE90CNPALE37ATE' at UNTM.EA9NEv p MFRSONAL SD wmocvL1130ww CSA CENTPAL BUSNIffi ARMIALIAGE FCC RANNM MMUNTYW CWWT s' SPMFICRAN C4 PANNH3,%0gNGCa RI FRt BANNED MDE`RIAL DEVROPY ENT C8 ARMALOMMEd7AL. � '� CUP 2016-34 IIIc Ja' SANTA ANA RIVER BREWING COMPANY 3480 WEST WARNER AVENUE, SUITE B --- =5D0 FEET V= 1000 FEET P L A N N I N G A N D B U I L 0 1 N G A G E N C Y EXHIBIT 1 VICINITY MAP 31 C-8 CUP 2016-34 . SANTA ANA RIVER BREWING COMPANY 3480 WEST WARNER AVENUE, SUITE B P L A N N I N G A N D Q U 1 L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31 C-9 z F} RI L INDU5 RIAL EF PR w w NDUS C = cc L IND JSTRIAL .CENTRAL AVE u: } u TRAL A D z <1 w J AfJAMS 57, � INDUSTRIAL <c ~ Lu z 0= w J } _ SEGERSTROM AVENUE CUP 2016-34 . SANTA ANA RIVER BREWING COMPANY 3480 WEST WARNER AVENUE, SUITE B P L A N N I N G A N D Q U 1 L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31 C-9 CUP 2016-34 SANTA ANA RIVER BREWING COMPANY 3480 WEST WARNER AVENUE, SUITE B EXHIBIT 3 SITE PHOTOS 31 C-10 rl T 1T1111(� TITTTfI1"ET117I TIT11�Tl1 �I TTI l TI t (TiT(�J Ti I Il vL 3400 _111E: - --� 3440 I� 3400 SELF STORAGE NOT A PART AVCA Ga ikNAY� 1lNMINPLit[4 Pw4+:xl+ PARKNYI 91W(NSC I C EXG SiTC F'L,4;v (P012 c2EFERENGE v'v48 w CUP 2016-34 SANTA ANA RIVER BREWING COMPANY 3480 WEST WARNER AVENUE, SUITE B EXHIBIT 4 SITE PLAN 31 C-11 W. KARNER AVE. I C EXG SiTC F'L,4;v (P012 c2EFERENGE v'v48 w CUP 2016-34 SANTA ANA RIVER BREWING COMPANY 3480 WEST WARNER AVENUE, SUITE B EXHIBIT 4 SITE PLAN 31 C-11 TA%Tlln ARrRl iNY Of-1'A('A I� I� :ley: mooF- PLAN I, q.nrf I CUP 2016-34 SANTA ANA RIVER BREWING COMPANY 3480 WEST WARNER AVENUE, SUITE B EXHIBIT 5 FLOOR PLAN 31 C-12 11.28.16 RESOLUTION NO. 2016-43 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2016-34, AS CONDITIONED, TO ALLOW A LIMITED TASTING AREA AND LIMITED DIRECT SALES TO CUSTOMERS OF ALCOHOLIC BEVERAGES AT AN ALCOHOLIC BEVERAGE MANUFACTURING FACILITY LOCATED AT 3480 WEST WARNER AVENUE, UNIT B BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Santa Ana River Brewing Company ("Applicant') is requesting approval of Conditional Use Permit No. 2016-34 to allow a limited tasting area and limited direct sales to customers of alcoholic beverages at an alcoholic beverage manufacturing facility located at 3480 West Warner Avenue, Unit B. B. Santa Ana Municipal Code Section 41-196 requires approval of a conditional use permit for establishments wishing to sell alcohol for on- or off -premise consumption. C. On November 28, 2016, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2016-34. D. The Planning Commission of the City of Santa Ana determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code (SAMC) Section 41-638, have been established for Conditional Use Permit No. 2016-34 to allow the operation of a microbrewery with a tasting area and direct customer sales: 1. That the proposed use will provide a service or facility which will contribute to the general well being of the neighborhood or community. The proposed limited tasting area and limited direct sales of beer to customers will provide an ancillary service to the manufacturing facility. This will thereby benefit the community by providing a unique manufacturing operation with an additional and complementary public service. Standards and Resolution No. 2016-43 Page 1 of 6 31 C-13 conditions are applicable to the alcoholic beverage control license which will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. The proposed microbrewery will not be detrimental to persons residing or working in the vicinity because conditions of approval to the alcoholic beverage control license will mitigate any potential negative or adverse impacts created by the use. This is primarily a manufacturing use and the addition of alcohol sales and tastings to the public will be ancillary to the main use. In addition, the use will occur within the premises, mitigating any potential impacts to the surrounding neighborhood. Finally, the sale of alcohol at the facility is intended to be incidental to the primary use as a manufacturing operation. 3. That the proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. The proposed use will not adversely affect the economic stability of the area, but will instead allow the manufacturing facility to compete with other nearby microbreweries in Orange County that also offer tastings and limited sales to their guests and other visitors. Moreover, the offering of alcoholic beverages will allow the operator to remain economically viable and contributes to the overall success of the Santa Ana, helping to decrease the number of vacant spaces that may affect the economic viability of the area. 4. That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. The proposed microbrewery will be in compliance with all applicable regulations and conditions imposed on a manufacturing facility selling alcohol pursuant to Chapter 41 of the Santa Ana Municipal Code. The facility will be maintained as a manufacturing operation, allowed by right by the SAMC, having all necessary equipment to operate primarily as a beer manufacturer with ancillary alcohol service that is open to the public. Resolution No. 2016-43 Page 2 of 6 31C-14 5. That the proposed use will not adversely affect the General Plan of the city or any specific plan applicable to the area of the proposed use. The proposed use will not adversely affect the General Plan. The granting of this conditional use permit supports several policies contained in the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. Providing a variety of unique manufacturing facilities, including a microbrewery, meets the City's needs for goods and services for residents and visitors. Policy 2.8 of the Land Use Element promotes the rehabilitation of commercial properties, and encourages increased levels of capital investment. The operator's tenancy contributes to the maintenance and viability of the repurposed industrial building in which it is located. Further, Policy 2.9 of the Land Use Element supports developments that create a business environment that is safe and attractive. Conditions of approval for the proposed microbrewery will ensure a safe and attractive environment in the neighborhood. Finally, Policy 5.5 of the Land Use Element encourages development that is compatible with and supporting of surrounding land uses. The facility will be located in an industrial area and its operations will be compatible with the surrounding industrial businesses and will minimize impacts to surrounding properties in the vicinity. E. In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to allow limited tastings and limited direct sales to consumers within an existing structure. No expansions of square footage or physical land disturbance are proposed as part of this project. Categorical Exemption Environmental Review No. 2016-100 will be filled for this project. 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. Resolution No. 2016-43 Page 3 of 6 31 C-15 Section 3. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2016-34 as conditioned in Exhibit "A" attached hereto and incorporated herein for the project located at 3480 West Warner Avenue, Unit B. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Planning Commission Action dated November 28, 2016, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. ADOPTED this 281" day of November, 2016. AYES: Commissioners: Alderete, Bacerra, Bauer, Gartner, McLoughlin, Mendoza, Verino (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Lynnette Verino Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, ROSA BARELA, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2016-43 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on November 28, 2016. Date: Acting Recording Secretary City of Santa Ana 31 C-16 Resolution No. 2016-43 Page 4 of 6 EXHIBIT A Conditions for Approval for Conditional Use Permit No. 2016-34 Conditional Use Permit No. 2016-34 for a microbrewery at 3480 West Warner Avenue, Unit B, is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. 1. The sales, service, and consumption of alcoholic beverages shall be permitted only between the hours of 12:00 p.m. and 9:00 p.m. and are limited to the approved tasting area. 2. The approval of this Conditional Use Permit must not be construed as the approval of a bar or cocktail lounge, nor as a nightclub or cabaret with entertainment and/or dancing and this establishment must not operate as such. The facility must remain primarily a manufacturing facility. 3. It shall be the applicant's responsibility to ensure that no alcoholic beverages are consumed on any property adjacent to the licensed premises under the control of the applicant. 4. The applicant or an employee of the licensee must be present to monitor all areas of the facility during all times that alcoholic beverages are being sold, served or consumed. 5. Anyone under the age twenty-one (21) entering the tasting area must be accompanied by a parent or guardian. 6. No other brand of beer may be sold at this location — only other products manufactured by Santa Ana River Brewing Company. 7. Employees shall not consume any alcoholic beverages during their work shift, except for product sampling for purposes of employee education about new products. Resolution No. 2016-43 Page 5 of 6 31 C-17 8. There shall be no exterior advertising of any kind or type, including window signs or other signs visible from outside, that promote or indicate the availability of alcoholic beverages on the premises other than the primary business signage permitted by the Santa Ana Municipal Code. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. Permissible window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. Floor displays shall not exceed three feet in height. 9. There shall be no promotions encouraging intoxication or drinking contests or advertisements indicating "buy one free", "two for the price of one', or "all you can drink for..." or similar language. 10. No amusement machines or video games shall be maintained or operated on the premises at any time. 11. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises under the control of the licensee. 12. There shall be no public telephones located on the exterior of the premises. All interior pay phones must be designed to allow outgoing calls only. 13. This land use authorization is only applicable to a Type 23 license. Any other type of alcohol license at this location will require submittal of plans to the Planning Division for review after which the Planning Manager will determine if administrative relief is available of if the project must be reviewed by the Planning Commission. 14.The owner or manager of the licensed premises shall maintain on the premises a written security policy and procedures manual, that has been approved by the police department, addressing at a minimum the following items; handling obviously intoxicated persons; establishing a reasonable ratio of employees to patrons, based upon activity level, in order to monitor beverage sales and patron behavior; handling patrons involved in fighting, arguing or loitering about the building and in the immediate adjacent area that is owned, leased, rented or used under agreement by the Licensee(s); verifying age/checking identification of patrons; warning patrons of reaching their drinking limit/potential intoxication and refusing to serve; calling the police regarding observed or reported criminal activity and the management of queuing lines. Resolution No. 2016-43 Page 6 of 6 31 C-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: CONDITIONAL USE PERMIT NO. 2016-39 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON -PREMISE CONSUMPTION FOR PIZZA HUT RESTAURANT LOCATED AT 3317 SOUTH BRISTOL STREET - ALICIA MALDONADO, APPLICANT (STRATEGIC PLAN NO. 3,2) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: r0=i001 ❑ As Recommended ❑ As Amended ❑ Ordinance on 1�t Reading ❑ Ordinance on 2"a Reading Cl Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2016-39. PLANNING COMMISSION ACTION At its regular meeting on November 28, 2016, by a vote of 7:0, the Planning Commission adopted a resolution approving Conditional Use Permit No. 2016-39 which approved the sale of alcoholic beverages for on -premise consumption at the Pizza Hut restaurant located at 3317 South Bristol Street located in the Community Commercial (C-1) zoning district. The Planning Commission made no changes to the recommendation outlined in the attached staff report (Exhibit A). DISCUSSION Pizza Hut restaurant will allow the on -premise sale of alcoholic beverages to its patrons and remain competitive with similar establishments in the area. Pizza Hut is an American chain restaurant well known for its pizzas and pastas and offers a family friendly environment. The existing restaurant facility is currently surrounded by residential and commercial land uses. At this time with no tenant improvements, the restaurant will be able to host a maximum occupancy of 104 patrons. 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, Objectives #2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies). 31 D-1 Conditional Use Permit No. 2016-39 — Pizza Hut Restaurant Alcoholic Beverages at 3317 South Bristol Street December 20, 2016 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. ?16a! ssan Hagg ani, A IICP Executive Director Planning & Building Agency EM:rb M:\Projects\CUP16-39 Pizza Hut= Exhibit: A. Planning Commission Staff Report 31 D-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: PUBLIC HEARING — FILED BY ALICIA MALDONADO FOR CONDITIONAL USE PERMIT NO. 2016-39 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON -PREMISE CONSUMPTION FOR PIZZA HUT RESTAURANT LOCATED AT 3317 SOUTH BRISTOL STREET (STRATEGIC PLAN NO. 3, 2) Prepared by Escarlet Mar Executive Director RECOMMENDED ACTION PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Adopt a resolution approving Conditional Use Permit No. 2016-39. Request of Applicant Alicia Maldonado, representing Pizza Hut Restaurant, permit (CUP) to allow the sale of alcoholic beverages eating establishment located at 3317 South Bristol beverages require approval of a CUP pursuant to S Code (SAMC). Project Location and Site Description Planning Manager --�— is requesting approval of a conditional use for on -premise consumption at an existing Street. Establishments that sell alcoholic ection 41-196 of the Santa Ana Municipal The subject site is a 12.07 -acre parcel of land located on the east side of Bristol Street north of MacArthur Boulevard. The property contains approximately 73,300 square feet of leasable area within an existing commercial center and has a total of 659 parking spaces. The General Plan land use designation for this property is General Commercial (GC). General Commercial land use districts provide highly visible and accessible commercial development along the rtation corridors and provide TrnporCant rrelghborhoodaciiities and services, such as this restaurant. The project is consistent with the General Plan land use designation. The site is located within the Community Commercial (C1) zoning district. The C1 zoning district allows for commercial uses such as restaurants and retail. The proposed project is consistent with the zoning for the site. Surrounding land uses include a mixture of residential to the east, and commercial to the north, south and west (Exhibits 1, 2 and 3). EXHIBIT A 31 D-3 Conditional Use Permit No. 2016-39 November 28, 2016 Page 2 Project Description Pizza Hut is requesting approval of a CUP to allow the on -premise sale of alcoholic beverages to patrons of the restaurant. This request would allow the restaurant to remain competitive with similar establishments and meet customer demands all year round. The alcohol sales component is ancillary to the primary food use and is sold only in conjunction with a food purchase. The alcoholic beverages will be stored within a walk-in cooler at the front of the restaurant within the enclosed kitchen area and will consist of less than five percent of the floor area (Exhibits 4 and 5). The restaurant's hours of operation are Sunday to Thursday from 11:00 a.m. to 11:00 p.m. and Friday and Saturday from 11:00 a.m. to midnight No extension of business hours is proposed as part of this project. Project Background The subject site, Bristol Plaza, is located in the southwestern section of Santa Ana. The development where the restaurant is located was built in 1972 and hosts a variety of retail and eating establishment uses. Currently, the commercial center consists of 15 tenants, Pizza Hut being one of them. The proposed addition of beer and wine to the existing eating establishment is Intended to allow Pizza Hut the ability to compete with other restaurants in the area that offer similar services. Pizza Hut is an American chain restaurant well known for Its pizzas and pastas, The restaurant is family friendly and welcomes all age groups offering made-to-order pizzas and pastas for its clients. Pizza Hut intends to provide an exceptional dining experience with its fresh ingredients and great customer service to its City residents. With no tenant improvements and expansion proposed at this time, the restaurant will have a maximum occupancy of 104 patrons. Project Analysis Conditional use permit requests are governed by Section 41-638 of the SAMC. Conditional use permits may be granted when it can be shown that the proposed project will not adversely impact the community. If these findings can be made, then it is appropriate to grant the conditional use permit. Conversely, the inability to make these findings would result in a denial. Staff has prepared the following analysis, which in turn forms the basis for the recommendation contained in this report, The purpose of regulating establishments that sell alcoholic beverages is to set forth operating practices and procedures, and to minimize impacts to surrounding areas. Staff has reviewed the applicant's request to obtain the on -sale beer and wine license. Since the proposed alcohol license is intended to provide an added amenity to the restaurant, and the sale of alcoholic beverages will be ancillary to the primary use as an eating establishment, staff recommends approval of the proposed CUP. 31 D-4 Conditional Use Permit No. 2016-39 November 28, 2016 Page 3 The proposed ABC license will not be detrimental to the health, safety, and welfare of the community. Pizza Hut is an established restaurant business with a history of service to the community and visitors of the City. The existing eating establishment and proposed alcoholic beverage service will enhance the economic viability of the area and create a more attractive dining opportunity for visitors and residents in the community. The proposed CUP will be in compliance with all regulations, including alcohol storage and display area, standards as set forth in Section 41-196(c) of the SAMC. Further the site will be in compliance with all the operational standards set forth in Section 41-196(g) of the SAMC, which govern the on -premises sale of alcoholic beverages (Exhibit 6). Finally, the proposed CUP will be consistent with several goals and policies of the General Plan, including Goal 2 of the Land Use Element, which encourages land uses that enhance the City's economic and fiscal viability. Pizza Hut proposes to provide an additional amenity as part of the restaurant operations by serving alcoholic beverages to guests and residents of the City. Police Department Analysis The Police Department reviews conditional use permit applications for the sale and service of alcoholic beverages in order to ensure that the potential crime and nuisance behaviors associated with alcohol consumption are mitigated to the greatest extent possible. For on -sale licenses, the Police Department analyzes the crime rate in the area using the standards and definitions contained in the Business and Professions Code Section 23948.4(c)(2), which also are utilized by the State Department of Alcoholic Beverage Control (ABC). This section defines "reported crimes" as criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors, except traffic citations. The Police Department then compares the number of such crimes in the reporting district as compared to the number of crimes in other reporting districts. In keeping with the standard used by the State ABC and Business and Professions Code, should the Police Department determine that the reporting district has a 20 percent greater number of reported crimes than the average number found in all reporting districts, the Police Department will consider this information in makin its-recommendatlon. The Police Department has reviewed the application and has noted that the restaurant is located within Reporting District No. 150, which ranks 40th out of 102 Citywide Districts in total number of police -related incidents. This puts the restaurant in an area of the City considered below average in police -related incidents. The Police Department contends that the operational standards applicable to on -premise ABC licenses will mitigate any potential impacts to the surrounding community. Moreover, the proposed conditional use permit will also be consistent with similar ABC licenses for restaurants in the area Therefore, the Santa Ana Police Department does not oppose the granting of a CUP to this business. 31 D-5 Conditional Use Permit No. 2016-39 November 284, 2016 Page 4 Public Notification The project is located within the boundary of the South Coast Neighborhood Association, Staff contacted the president of the neighborhood association to ensure that they were notified of this project and to identify any areas of concern. The neighborhood representative had no comments regarding the proposed CUP at the time the staff report was prepared. The project site was also posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter, and mailed notices were sent to all property owners and tenants within 500 feet of the project site. At the time of this printing, no correspondence, either written or electronic, has been received. CEQA Compliance In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to allow the on -premise sale of beer and wine at a full-service restaurant within an existing structure, It has been found by the City's development review agencies that the use will not create any adverse impacts such as noise, traffic, or safety concerns. The cumulative impact of this project will not be significant as the use will be complementary with the nearby commercial uses in the area. There is no reasonable possibility that the project will have a significant effect on the environment due to the facility having the necessary infrastructure to operate the proposed use. Categorical Exemption Environmental Review No. 2016-127 will be filed for this project. Strategic Pian 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 analysis -provided within -this report, staff- recommends that the -Planning Commission approve Conditional Use Permit No. 2016-39, Escarlet Mar Planning Technician EM:jm MAProjects\CUP16-39 Pizza Hut. 112816.pc 31 D-6 Conditional Use Permit No. 2016-39 November 28, 2016 Page 5 Attachments: Exhibit 1 —Vicinity Map Exhibit 2 — Location Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan Exhibit 5 — Floor Plan Exhibit 6 — Operational Standards for On -Sale Establishments 31 D-7 Al GE4B LAC#NOILT JML} OR CCMM970ALRESM IWL m SNC EFAMILY�DFiJiIAL .D RWVNGMODIMCAMON CL GOVVB M9YT03MTEi w TAOFAMILYRRIOMM r,W CCMMMAL9XJTHMAIN Mi UGITINDUSFML w MULTIREUFNBWMULRFLE Gi COMMUNIIYOCMMEWAL M2 HEAVYINDU9IFMAL FAMILYODRCE CI.MD CCMM.00MMF AUMUS:UM DISidCf MO MIUTAWOPEPA KS m 91&I NAPARfM8 C2 CEtlGiALIXMMUML O OPEN FACE FE FMDMAL6T E m C9YTPMU9NF-3 P RCFESONAL ED S�MFlCDEVE.owM f1A1.'IN®CyWMUNllyMROfW JT ........ T a�DFlCRAN C4 FLANNOD 1OMNCCEfM m RANN®FE30 MAL0699FMHJT a ARMS ALCO.MMSUAL CUP 2416-39 ?i PIZZA HUT ON -SAME ABC. 3317 SOUTH BRISTOL STREET - 500 FEET T'-1000 FEE P L A N N I NG A N D 8 U I L D I N G _ A G EN G Y EXHIBIT 1 VICINITY MAP 31 D-8 ALTON MACARTHUR C O M M E R C I A L E— w Lu cc I— Ln AVENUE C O M M E R C I A L C O M M E R C I A L C 0 M M . BOULEVARD FcM U L T I OM M. F A M I L Y o R E S I D E N C E CUP 2016-39 PIZZA HUT ON -SALE ABC 9I' 3317 SOUTH BRISTOL STREET P L A N N N G A N 0 B U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31 D-9 CUP 2016-39 PIZZA HUT ON -SALE ABC 3317 SOUTH BRISTOL STREET SITE PHOTO EXHIBIT 3 31 D-10 (��a 3P7 �QQ 4 H I P WHIP � N •oma anHl.adww T`\ % t ll�l It'll 1 O ! 1 „ro �• a ,vd>rrnml A Irk sur,r v '' O t{ IIJ,1115' � r Q l� WiNV �PIIA! x ixl a �v 1.411,41 q O i ; yr ©. F 97. r � g FIOI SV rY IY _ „ 1 srooeuw3 smroumuaivs O � I ! (} Y PVI ,/'s^p ❑ '.. 3nV N011V m EXHIBIT 4 EXHIBIT 5 �n o �W J�N �O S ... �_.�{.f...... x Z J a wI mggk Lu d ®� W V S fdlejC h Q 0 V to EXHIBIT 5 �n o x � Sec. 41-196. Establishments selling alcoholic beverages. Operational standards for on -sale establishments. The following operational standards shall be included as informational conditions in the conditions of approval for the conditional use permit required pursuant to Section 41-196 The premises shall at all times be maintained as a bona -fide eating establishment as defined in Section 23038 of the California Business and Professions code and shall provide a menu containing an assortment of foods normally offered. The premises must have suitable kitchen facilities and supply an assortment of foods commonly ordered at various hours of the day. Full and complete meals must be served whenever the privileges of the on -sale license are being exercised. 2. There shall be no fixed bar or lounge area upon the premises maintained for the sole purpose of sales, service or consumption of alcoholic beverages directly to patrons. A fixed bar or lounge may be permitted if patrons may order food being offered to the general patrons of the eating establishment. 3. The sales, service, and consumption of alcoholic beverages shall be permitted only between the hours of 8:00 a.m. and 12:00 a.m. unless otherwise amended by the granting of a conditional use permit for after-hours operations pursuant to Santa Ana Municipal Code Chapter 41. 4. It shall be the applicant's responsibility to ensure that no alcoholic beverages are consumed on any property adjacent to the licensed premises under the control of the applicant, with the exception of any enclosed patio areas. 5. The applicant or an employee of the licensee must be present to monitor all areas of the establishment, including outdoor patios, during all times that alcoholic beverages are being served or consumed. 6. All employees serving alcoholic beverages must complete Responsible Beverage Service Training, or an equivalent approved by the State Department of Alcoholic Beverage Control, prior to being able to serve alcoholic beverages to patrons. Evidence of the completion of such training must be maintained on the premises and available for inspection upon request by the City. During those times when patrons are restricted to 21 years of age or older, the applicant shall at all times utilize an age verification means or device for all purchases of alcoholic beverages. Such verification of age is not intended to discriminate against patrons based on race, ethnicity or legal status, but only to comply with state law restricting the sale of alcohol to those 21 and older. 8. Queuing lines shall be managed in an orderly manner and all disruptive and/or intoxicated patrons shall be denied entry. The business owner, or his designee, shall be responsible for monitoring the queuing lines at all times. EXHIBIT 6 1 of 4 31 D-13 9. The outdoor queuing line shall not block public walkways or obstruct the entry or exit doors of adjacent businesses. Stanchions or barriers must be used to maintain order at all times the queue exceeds 25 patrons. All stanchions or barriers located on public property must be approved by the Public Works Agency, 10. Employees and contract security personnel shall not consume any alcoholic beverages during their work shift, except for product sampling for purposes of employee education about new products. Under no circumstances may contract security personnel consume alcoholic beverages during their work shift. 11. There shall be no exterior advertising of any kind or type, including window signs or other signs visible from outside, that promote or indicate the availability of alcoholic beverages on the premises. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. Permissible window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. Floor displays shall not exceed three feet In height. 12. There shall be no promotions encouraging intoxication or drinking contests or advertisements indicating "buy one drink, get one free", "two for the price of one", or "all you can drink for..." or similar language. 13. Any pool tables, amusement machines or video games maintained on the premises at any time must be reviewed and approved in a security plan submitted to the Chief of Police. 14. Live Entertainment, including but not limited to, amplified music, karaoke, performers and dancing, shall be subject to the issuance of an entertainment permit pursuant to Santa Ana Municipal Code ("SAMC") Chapter 11 — Entertainment, and shall comply with all of the standards contained therein. Notwithstanding this requirement, music/noise shall not be audible beyond 20 feet from the exterior of the premises in any direction. 15. Neither the applicant, nor any person or entity operating the premises with the permission of the applicant, shall violate the City's adult entertainment ordinance contained in SAMC Section 12-1 and 12-2. 16. The premises shall not be operated as an adult entertainment business as such 17. The applicant(s) shall be responsible for maintaining 'free of litter the area adjacent to the premises under the control of the licensee. 18. There shall be no public telephones located on the exterior of the premises. All interior pay phones must be designed to allow outgoing calls only. 2of4 31D-14 19. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted within 24 hours of being applied. 20. Existing bona fide eating establishment and required parking must conform to the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project lighting, door/window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. Prior to issuance of Letter of Approval to the Alcohol Beverage Control Board, this condition must be complied with. 21. A timed -access cash controller or drop safe must be installed. 22. Install a silent armed robbery alarm. 23. The owner or manager of the licensed premises shall maintain on the premises a written security policy and procedures manual that has been approved by the Police Department, addressing at a minimum the following items a. Procedures for handling obviously Intoxicated persons. b. The method for establishing a reasonable ratio of employees to patrons, based upon activity level, in order to ensure adequate staffing levels to monitor beverage sales and patron behavior. C. Procedures for handling patrons involved in fighting, arguing or loitering about the building, and/or in the immediate adjacent area that is owned, leased, rented or used under agreement by the Licensee(s). d. Procedures for verifying the age of patrons for purposes of alcohol sales. e. Procedures for ensuring that servers monitor patrons to ensure that their drinking limit/potential intoxication is not exceeded. This procedure should include a description of the procedure the server would use to warn, or refuse to serve, the patron. f. Procedures for calling the police regarding observed or reported criminal g. Procedures for management of queuing lines. h. The location and description of any video games proposed to be on the premises. 3of4 31 D-15 24. The operator shall be responsible for submitting a detailed outdoor fencing and dining plan where outdoor dining is proposed as part of the business operation. If the proposed dining area or fencing is in the public right of way, the applicant must obtain all required permits and approvals from the Public Works Agency. 25. Combined alcohol storage and display areas shall not exceed five percent (5%) of the gross floor area of the licensed establishment. 4of4 31 D-16 LS 11.28.16 RESOLUTION NO. 2016-44 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2016-39 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON -PREMISE CONSUMPTION AT PIZZA HUT RESTAURANT LOCATED AT 3317 SOUTH BRISTOL STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Conditional Use Permit No. 2016-39 to allow the sale of alcoholic beverages for on -premise consumption for the property located at 3317 South Bristol Street. B. Santa Ana Municipal Code Section 41-196 requires a conditional use permit for the sale of alcoholic beverages for on-site consumption of alcoholic beverages that is ancillary to the primary restaurant use. C. On November 14, 2016, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2016-39. At applicant's request, the Planning Commission continued Conditional Use Permit No. 2016-39 to November 28, 2016. D. The Planning Commission determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code (SAMC) Section 41-638, have been established for Conditional Use Permit No. 2016-39 to allow for sale of alcoholic beverages for on -premise consumption: 1. That the proposed use will provide a service or facility which will contribute to the general well being of the neighborhood or the community. The proposed sale of alcoholic beverage for on -premise consumption at this location will provide an ancillary service to the restaurant's customers by allowing them the ability to purchase a variety of alcoholic beverages with their food. This will thereby benefit the community by providing a restaurant with an additional and complementary food - related amenity. Standards are applicable to the alcoholic beverage control license which will mitigate any potential Resolution No. 2016-44 Page 1 of 4 31 D-17 impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. That the proposed use under the circumstances of the particular case will not be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. The proposed sale of alcoholic beverage for on -premise consumption at this location will not be detrimental to persons residing or working in the vicinity because operational standards applicable to the alcoholic beverage control license will mitigate any potential negative or adverse impacts created by the use. This is primarily a restaurant use and the addition of alcohol will be ancillary to the main use. Finally, the sale of alcohol in the restaurant is intended to be incidental to the primary use as an eating establishment and will occur within the premises. 3. That the proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. The proposed use will not adversely affect the economic stability of the area, but will instead allow the restaurant to compete with other nearby restaurants that also offer a full selection of alcoholic beverages for sale to their guests and other visitors. Moreover, the offering of alcoholic beverages will allow Pizza Hut, a chain restaurant, to remain economically viable and compete with nearby full-service restaurants in the vicinity and contributes to the overall success of the City of Santa Ana. 4. That the proposed use shall comply with the regulations and conditions specified in Chapter 41 for such use. The proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant selling alcoholic beverages for on -premise consumption pursuant to Chapter 41 of the Santa Ana Municipal Code. The facility will be maintained as a full- service, bona -fide eating establishment, having suitable kitchen facilities and supplying an assortment of foods commonly ordered at various hours of the day. Additionally, the restaurant will utilize less than five (5%) percent of the gross floor area for the display and storage of alcoholic beverages, which is the maximum threshold established by the Santa Ana Municipal Code. 5. That the proposed use will not adversely affect the General Plan or any specific plan of the City. Resolution No. 2016-44 Page 2 of 4 31 D-18 The proposed sale of alcoholic beverage for on -premise consumption at this location will not adversely affect the General Plan. The granting of this conditional use permit supports several policies contained in the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. Providing a variety of full-service restaurants that feature alcoholic beverages on their menus offers additional dining options for Santa Ana residents and visitors. Finally, Policy 5.5 of the Land Use Element encourages development that is compatible with and supporting of surrounding land uses. Pizza Hut will be located in a commercial area and its operation will be compatible with the surrounding commercial businesses. E. In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to allow the on -premise sale of alcoholic beverages at a full-service restaurant within an existing structure. It has been found by the City's development review agencies that the use will not create any adverse impacts such as noise, traffic, or safety concerns. The cumulative impact of this project will not be significant as the use will be complimentary with the nearby commercial uses in the area. There is no reasonable possibility that the project will have a significant effect on the environment due to the facility having the necessary infrastructure to operate the proposed use. Categorical Exemption Environmental Review No. 2016-127 will be filed for this project. 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 Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2016-39. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Planning Commission Action dated November 14, 2016, and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference; the Request for Planning Commission Action dated November 28, 2016, and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. Resolution No. 2016-44 Page 3 of 4 31 D-19 ADOPTED this 281h day of November, 2016 by the following vote: AYES: Commissioners: Alderete, Bacerra, Bauer, Gartner, McLoughlin, Mendoza, Verino (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Lynnette Verino Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, ROSA BARELA, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2016-44 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on November 28, 2016. Date: Acting Recording Secretary City of Santa Ana 31 D-20 Resolution No. 2016-44 Page 4 of 4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: CONDITIONAL USE PERMIT NO. 2016-40 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON -PREMISE CONSUMPTION AT 2791 NORTH MAIN STREET - TERRY WOMACK, APPLICANT (STRATEGIC PLAN NOS. 3, 2, 4) CITY MALNAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on V' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For �10Y1111111Li�, FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2016-40. PLANNING COMMISSION ACTION At its regular meeting on November 28, 2016, by a vote of 7:0, the Planning Commission adopted a resolution approving Conditional Use Permit No. 2016-40 which approved the sale of alcoholic beverages for on -premise consumption at an eating establishment, Olive Garden restaurant, at 2791 North Main Street located in the Specific Development No. 59 (SD -59) zoning district. The Planning Commission made no changes to the recommendation outlined in the attached staff report (Exhibit A). DISCUSSION Terry Womack, representing Olive Garden restaurant, is requesting approval of a conditional use permit to allow the on -premise sale and consumption of alcoholic beverages as part of the eating establishment's operations. The restaurant will be maintained as a full-service, sit-down eating establishment with outdoor dining area. The eating establishment will have all necessary kitchen equipment to be considered for an on -premise alcohol beverage control license. The on -premise sale of alcoholic beverages to customers is intended to provide a service that is ancillary to the primary restaurant use. The proposed hours of operation for the restaurant are from 11:00 a.m. to 10:00 p.m. Sunday through Thursday and from 11:00 a.m. to 11:00 p.m. Friday and Saturday. The storage area for alcoholic beverages will be located in a walk-in cooler, behind the service counter, and in display cases in the dining area. The alcohol storage and display area will total three percent of the gross floor area of the tenant space, which is below the Santa Ana Municipal Code's maximum for eating establishments serving alcoholic beverages of five percent of the gross floor area. Full-sized site plans are available for public viewing in the Clerk of the Council Office. 31 E-1 CUP No. 2016-20 — Olive Garden Alcoholic Beverages at 2791 North Main Street December 20, 2016 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objectives #2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies), and Objective #4 (continue to pursue objectives that shape Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination). FISCAL IMPACT There is no fiscal impact associated with this action. assan HagVani, MCP Executive Director Planning & Building Agency RS:rb WReporMCUP 2016-40\CUP No. 2016-40, Olive Garden ABC License.cc Exhibit: A. Planning Commission Staff Report 31 E-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: NOVEMBER 28, 2016 TITLE PUBLIC HEARING — FILED BY TERRY WOMACK FOR CONDITIONAL USE PERMIT NO. 2016-40 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON -PREMISE CONSUMPTION AT 2791 NORTH MAIN STREET (STRATEGIC PLAN NOS. 3,2; 3,4) Prepared by Ricardo Soto Executive Director PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO RECOMMENDED ACTIONS Adopt a resolution approving Conditional Use Permit No. 2016-40. Request of Applicant Planning Manager Terry Womack, representing Olive Garden, is requesting approval of a conditional use permit (CUP) to allow the on -premise sale and consumption of alcoholic beverages at 2791 North Main Street. Establishments that sell alcoholic beverages require approval of a CUP pursuant to Section 41-196 of the Santa Ana Municipal Code (SAMC). Project Location and Site Description The subject site is located on a 6,1 acre parcel that is part of a 15.18 -acre mixed-use development commonly known as City Place. The site is located at the northeast corner of Main Street and East Memory Lane, across from MainPlace Mall, and is currently developed with a mixture of commercial, residential, and live -work units. The site is surrounded by office and commercial uses to the south, north and west, and residential uses to the east. Olive Garden is proposing to locate and sell alcoholic beverages for on -premise consumption within a vacant tenant space that was previously occupied by McCormick & Schmick's restaurant. The General Plan land use designation for the site is District Center (DC). District Center land use districts provide highly visible and accessible commercial development along the City's arterial transportation corridors and provide important neighborhood facilities and services, such as this restaurant. The project is consistent with the General Plan land use designation. The site is located within the Specific Development No. 59 (SD -59) zoning district. The SD -59 zoning district allows for retail and service commercial uses such as restaurants. The proposed project is consistent with the zoning for the site (Exhibits 1, 2 and 3). EXHIBIT A 31 E-3 Conditional Use Permit No. 2016-40 November 28, 2016 Page 2 Project Description Olive Garden is requesting approval of a CUP to allow the on -premise sale and consumption of alcoholic beverages. The establishment will be maintained as a full-service, sit-down eating establishment with an outdoor dining area; The restaurant will have all necessary equipment to be considered for an on -premise ABC license. The outdoor dining area is proposed to have seating for approximately 60 patrons and be enclosed with a 36 -inch high fence that is in compliance with all applicable City and State Department of Alcoholic Beverage Control standards. The alcohol sales component is intended to provide a service ancillary to the primary .restaurant use. The proposed hours of operation are Sunday through Thursday from 11:00 a.m. to 10x0'Q p.m. and Friday and Saturday from 11:00 a.m. to 11:00 p,m. After-hours operation is not being proposed' as part of this request. The alcoholic beverages will be stored within a walk-in cooler at the rear of the restaurant, behind the service counter; and will be stored and displayed on shelves located in the dining area. The combined storage and display area will be approximately three percent of the total restaurant floor area. This percentage of alcohol storage is below the Santa Ana Municipal Code's maximum for eating establishments serving alcoholic beverages of five percent of the gross flood' area of the restaurant (Exhibits 4 and 5). Prolect Background Olive Garden is a casual -dining restaurant chain specializing In Italian -American cuisine that operates over 800 locations globally. Olive Garden restaurant will occupy an existing tenant space that was previously occupied by McCormick & Schmick's. A CUP for an ABC license was previously approved for this location in 2006. However, due to McCormick & Schmick's closing, the sale of alcoholic beverages has ceased for more than a one year period, declaring the previous CUP void. As such, there is no conditional use permit to ailow the on -premise sale of alcoholic beverages at the tenant space. Proiect Analysis Conditional use permit requests are governed by Section 41-638 of the SAMC and maybe granted when it can be shown that the proposed project will not adversely impact the community. If these findings can be made, then it is appropriate to grant the CUP. Conversely, the inability to make these findings would result in a denial. Staff has prepared the following analysis, which in turn forms the basis for the recommendation contained in this report. 31 E-4 Conditional Use Permit No. 2016-40 November 28, 2016 Page 3 The purpose of regulating establishments that sell alcoholic beverages is to set forth operating practices and procedures and to minimize impacts to surrounding areas. Staff has reviewed the applicant's request for a CUP to allow the on -premise sale and consumption of alcoholic beverages. Since the proposed alcohol license is intended to provide an added amenity to the restaurant, and because the sale of alcoholic beverages will be ancillary to the primary use as an eating establishment, staff recommends approval of the proposed CUP, The proposed use will not be detrimental to the health, safety, and welfare of the community. Olive Garden is an established restaurant chain with no history of disciplinary action in the City. The eating establishment and proposed alcoholic beverage service will enhance the economic viability of the area by occupying a commercial tenant space along a major gateway into the City that has been vacant for numerous years and create an attractive destination for visitors and residents in the community. The proposed CUP will be in compliance with all other regulations, including alcohol storage and display area set forth in Section 41-196(c) of the SAMC, Further, the site will be in compliance with all the operational standards set forth in Section 41-196(g) of the SAMC, which govern the on -premise sale of alcoholic beverages (Exhibit 6). Finally, the proposed CUP will be consistent with Goal 2 of the Land Use Element of the General Plan, which encourages land uses that enhance the City's economic and fiscal viability, that mitigate any potential impacts, and are compatible with and supporting of surrounding land uses. Olive Garden proposes to provide an additional amenity as part of the restaurant's operations, to serve guests and residents of the City, similar to the other restaurants in the immediate vicinity. Police Department Analysis As part of the review process for all CUPs, the Police Department has reviewed Olive Garden's application in order to ensure that the potential crime and nuisance behaviors associated with. alcohol consumption and alcohol sales are mitigated to the greatest extent possible. The Police Department analyzed the crime rate in the area using the standards and definitions contained in the Business and Professions Code Section 23948.4(c)(2), which are also utilized by the State Department of Alcoholic Beverage Control (ABC). This section defines "reported crimes" as criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors, except traffic citations. The Police Department then compares the number of such crimes in the reporting district as compared to the number of crimes in other reporting districts. In keeping with the standard used by the State's ABC and Business and Professions Code, should the Police Department 31 E-5 Conditional Use Permit No. 2016-40 November 28, 2016 Page 4 determine that the reporting district has a 20 percent greater number of reported crimes than the average number found in all reporting districts, the Police Department will consider this information in making its recommendation. This business address is located in Reporting District No. 181, which ranks 100 out of 1.02 citywide districts in total number of police -related incidents. This reporting district Is one of the lowest in reported incidents and is not 20 percent higher than the average number of reported crimes in all reporting districts, in addition, the Police Department contends that the: operational standards applicable to on -premise ABC licenses will mitigate any potential negative impacts to the surrounding community. As a result, the Police Department does not oppose granting this applicant's request. Public Notification The project site is not located within the boundary of an established neighborhood association. However, the site is adjacent to the Park Santiago Neighborhood Association. Staff notified the representative of the neighborhood, who identified no concerns with the project. The project site was also posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter, and notices were mailed to all property owners and occupants within 500 feet of the project site. At the time of printing this report, no correspondence, either written or electronic, had been received from any member of the public. CEQA Compliance In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant affect on the environment. The project proposes to allow the on -premise sale of alcoholic beverages at a full-service restaurant within an existing structure. It has been found by the City's development review agencies that the use will not create any adverse impacts such as noise, traffic, or safety concerns. The cumulative impact of this project will not be significant as the use will be complementary with the nearby commercial uses in the area. There is no reasonable possibility that the project will have a significant effect on the environment due to the facility having the necessary infrastructure to operate the proposed use, General Rule Exemption/Environmental Review No. 2016-142 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, 4 (continue to pursue objectives that shape Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination). 31 E-6 Conditional Use Permit No. 2016-40 November 28, 2016 Page 5 Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Conditional Use Permit No, 2016-40. Rio r o Soto Associate Planner RS: ]m MARepods\CUP 2016.401CUP No. 2010.40. Clive Garden ABC.Gcensa.pc Attachments: Exhibit 1 — Vicinity Map Exhibit 2 — Location Map Exhibit 3 — Site Photo Exhibit 4 -- Site Plan Exhibit 5 — Floor Plan. Exhibit 6 — Operational Standards for On -Sale Establishments 31 E-7 AI GENERALAGRICULll1ML A PARKING MODIFICATION Cl COMMUNITY COMMERCIAL CLMIT COMMUNITYCOMMERCIAI-•MU5EUM DIMPICI' C2 GENERAL COMMERCIAL C3 CENTRAL BUSINESS DTA CENTRA. BUSINESS ARTISTS -VILLAGE C4 PLANNED SWNJPPINGCENTER C5 ARTERIAL COMMERCIAL CR COMMERCIAL RESIDENTIAL C i Y Y o f P I a n g e C -SM SOVTI'I MARK STREET COMMERCIAL DISTRICC A' FLOW AREA RATIO GC GOW RNMENT CP.NTER Mi LIGHT INDUSTRIAL M2 IIEAVYINDI15TAIAI. MO MILITARY OPERATIONS 0 OPEN SPACE •OZ OVFf{LAY ZONE P PROFESSIONAL PCD PLANNED COMMUNITY DEVELOPMENT PD PIANNEDDEVELOPMENT PRD PIAPINEDRESIDENTIALDEVELOPMENT IN SINGLE-FAMILY RESIDENCE R2 TWO-FAMILYREMOrNCE AT MULTIPLE-FANPLY' RESIDENCE R4 SOEURRAN APARTMENT Rli RESIDENTIAL ESTATE 50 SPECIFIC DEVILL OPMENT SP SPECIFICPLAI CUP 2016-40 k OLIVE GARDEN ON -SALE ABC _ _eoDFeEr V=10� 2791 NORTH MAIN STREET P L A N N I N G A N D B U I L D I N G A G E N C Y VICINITY MAP EXHIBIT 1 31 E-8 L 0 FIT M E 9 C I A L OFFICE AND Z PARKING 0 COMMERCIAL STRUCTURE N A NG F, GIT V ILI WT 5 S AN T A AN A CIT V LIMIT 5 LIVE WORIKUNITS 4,,. CONDO' SENIOR dop, KANCTlt LANr CARE FACILITY CONDOS OFFlCE NG.'a PARK MAIN PL. DR. MEMORY SANTIAGO K OFFICE OFFICE G 0 ti PARI( AND 5 FN SANTIAGO "N < RESTAURANT PARKING STRUCTURE /�i CUP 2016-40 A\ OLIVE GARDEN ON -SALE ABC 119V 2791 NORTH MAIN STREET P L A N N I N G A N D B J I L 0 1 N G A G f N C Y LAND USE MAP EXHIBIT 2 31 E-9 CUP 2015-40 OLIVE GARDEN ON -SALE ABC 2791 NORTH MAIN STREET SITE PHOTO EXHIBIT 3 31 E-10 \\2Jƒ|/2»§/ ƒI999®& !# j§q\\\\\ /\ z _e /.� ._ __,� � - _ 11MIS N¥W .�- EXHIBIT& 31E.11 i, Ul I I K Lti, /I ID I.PRN IN, 7`7wrr 41- 7 ca 53 il i7 M ,io � I CL gig �4: i. --LL-, w u J— I I K Lti, /I ID I.PRN IN, 7`7wrr 41- 7 ca 53 il i7 M ,io � I I MiNhol it h RM . . ......... . . EXHIBIT 5 31 E-12 CL i. I MiNhol it h RM . . ......... . . EXHIBIT 5 31 E-12 Sec. 41-196. Establishments selling alcoholic beverages. Operational standards for on -sale establishments. The following operational standards shall be included as informational conditions in the conditions of approval for the conditional use permit required pursuant to Section 41-196 The premises shall at all times be maintained as a bona -fide eating establishment as defined in Section 23038 of the California Business and Professions code and shall provide a menu containing an assortment of foods normally offered. The premises must have suitable kitchen facilities and supply an assortment of foods commonly ordered at various hours of the day. Full and complete meals must be served whenever the privileges of the on -sale license are being exercised. 2. There shall be no fixed bar or lounge area upon the premises maintained for the sole purpose of sales, service or consumption of alcoholic beverages directly to patrons. A fixed bar or lounge may be permitted if patrons may order food being offered to the general patrons of the eating establishment. 3.. The sales, service, and consumption of alcoholic beverages shall be permitted only between the hours of 8:00 a.m. and 12:00 a.m. unless otherwise amended by the granting of a conditional use permit for after-hours operations pursuant to Santa Ana Municipal Code Chapter 41. 4. It shall be the applicant's responsibility to ensure that no alcoholic beverages are consumed on any property adjacent to the licensed premises under the control of the applicant, with the exception of any enclosed patio areas. 5. The applicant or an employee of the licensee must be present to monitor all areas of the establishment, including outdoor patios, during all times that alcoholic beverages are being served or consumed. All employees serving alcoholic beverages must complete Responsible Beverage Service Training, or an equivalent approved by the State Department of Alcoholic Beverage Control, prior to being able to serve alcoholic beverages to patrons. Evidence of the completion of such training must be maintained on the premises and available for inspection upon request by the City. 7. During those times when patrons are restricted to 21 years of age or older, the applicant shall at all times utilize an age verification means or device for all purchases of alcoholic beverages. Such verification of age is not intended to discriminate against patrons based on race, ethnicity or legal status, but only to comply with state law restricting the sale of alcohol to those 21 and older. Queuing lines shall be managed in an orderly manner and all disruptive and/or intoxicated patrons shall be denied entry. The business owner, or his designee, shall be responsible for monitoring the queuing lines at all times. EXHIBIT 6 1 of 4 31 E-13 g. The outdoor queuing line shall not block public walkways or obstruct the entry or exit doors of adjacent businesses. Stanchions or barriers must be used to maintain order at all times the queue exceeds 25 patrons. All stanchions or barriers located on public property must be approved by the Public Works Agency. 10. Employees and contract security personnel shall not consume any alcoholic beverages during their work shift, except for product sampling for purposes of employee education about new products. Under no circumstances may contract security personnel consume alcoholic beverages during their work shift. 11. There shall be no exterior advertising of any kind or type, including window signs or other signs visible from outside, that promote or indicate the availability of alcoholic beverages on the premises. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. Permissible window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. Floor displays shall not exceed three feet in height. 12. There shall be no promotions encouraging intoxication or drinking contests or advertisements indicating "buy one drink, get one free", "two for the price of one", or"all you can drink for..." orsimilar language.. 13. Any pool tables, amusement machines or video games maintained on the premises at any time must be reviewed and approved in a security plan submitted to the Chief of Police. 14. Live Entertainment, including but not limited to, amplified music, karaoke, performers and dancing, shall be subject to the issuance of an entertainment permit pursuant to Santa Ana Municipal Code ("SAMC") Chapter 11 — Entertainment, and shall comply with all of the standards contained therein. Notwithstanding this requirement, music/noise shall not be audible beyond 20 feet from the exterior of the premises in any direction. 15. Neither the applicant, nor any person or entity operating the premises with the permission of the applicant, shall violate the City's adult entertainment ordinance contained inSAMC Section 12-1 and 12-2. 16. The premises shall not be operated as an adult entertainment business as such term is defined in SAMC Section 41.1701.6, 17, The applicant(s) shall be responsible for maintaining free of fitter the area adjacent to the premises under the control of the licensee. 18. There shall be no public telephones located on the exterior of the premises, All interior pay phones must be designed to allow outgoing calls only.. 2of4 31E-14 19. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted within 24 hours of being applied. 2& Existing bona fide eating establishment and required parking must conform to the provisions of Chapter 8, Article ll, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project lighting, door/window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. Prior to issuance of Letter of Approval to the Alcohol Beverage Control Board, this condition must be complied with. 21. A timed -access cash controller or drop safe must be installed 22. Install a silent armed robbery alarm. 23. The owner or manager of the licensed premises shall maintain on the premises a written security policy and procedures manual that has been approved by the Police Department, addressing at a minimum the following items: a. Procedures for handling obviously intoxicated persons. b. The method for establishing a reasonable ratio of employees to patrons, based upon activity level, in order to ensure adequate staffing levels to monitor beverage sales and patron behavior, C. Procedures for handling patrons involved in fighting, arguing or loitering about the building, and/or in the immediate adjacent area that is owned, leased, rented or used under agreement by the Licensee(s). d. Procedures for verifying the age of patrons for purposes of alcohol sales. e. Procedures for ensuring that servers monitor patrons to ensure that their drinking limit/potential intoxication is not exceeded. This procedure should include a description of the procedure the server would use to warn, or refuse to serve, the patron. f. Procedures for calling the police regarding observed or reported criminal activity. g. Procedures for management of queuing lines. h. The location and description of any video games proposed to be on the premises. 3of4 31 E-15 24. The operator shall be responsible for submitting a detailed outdoor fencing and dining plan where outdoor dining is proposed as part of the business operation. If the proposed dining area or fencing Is in the public right of way, the applicant must obtain all required permits and approvals from the Public Works Agency. 25, Combined alcohol storage and display areas shall not exceed five percent (5%) of the gross floor area of the licensed establishment. 4of4 31 E-16 LS 11.28.16 RESOLUTION NO. 2016-45 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2016-40 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON - PREMISE CONSUMPTION AT OLIVE GARDEN RESTAURANT LOCATED AT 2791 NORTH MAIN STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Conditional Use Permit No. 2016-40 to allow an Alcoholic Beverage Control (ABC) license for the property located at 2791 North Main Street. B. Santa Ana Municipal Code Section 41-196 requires approval of a conditional use permit for establishments wishing to sell alcohol for on or off -premise consumption. C. On November 28, 2016, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2016-40. D. The Planning Commission of the City of Santa Ana determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code (SAMC) Section 41-638, have been established for Conditional Use Permit No. 2016-40 to allow for an ABC license: 1. That the proposed use will provide a service or facility which will contribute to the general well being of the neighborhood or community. The proposed on -premise ABC license will provide an ancillary service to the restaurant's customers by allowing them the ability to purchase a variety of alcoholic beverages with their food. This will thereby benefit the community by providing a restaurant with an additional and complementary food -related amenity. Standards are applicable to the alcoholic beverage control license which will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. Resolution No. 2016-45 Page 1 of 4 31 E-17 2. That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. The proposed on -premise ABC license for the on -sale consumption of alcoholic beverages at this location will not be detrimental to persons residing or working in the vicinity because operational standards to the alcoholic beverage control license will mitigate any potential negative or adverse impacts created by the use. This is primarily a restaurant use and the addition of alcohol sales will be ancillary to the main use. The sale of alcohol in the restaurant is intended to be incidental to the primary use as an eating establishment and will occur within the building and in the outdoor dining area. All health codes and regulations will be followed, in addition to employee training programs focused on security, alcohol responsibility, and preventing the sale of alcoholic beverages to minors, which ensure that the alcohol sales are handled in a responsible manner. 3. That the proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. The proposed on -premise ABC license will not adversely affect the present economic stability or future economic development of the properties surrounding the area. Conversely, the ABC license will enhance the economic viability of the area and create a more attractive destination for visitors and residents in the community. Moreover, the offering of alcoholic beverages will allow Olive Garden to remain economically viable and contribute to the overall success of City Place and the Main Street corridor. 4. That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. The proposed alcohol license will be in compliance with all applicable regulations and operational standards found in Chapter 41 of the Santa Ana Municipal Code, including alcohol storage and display area set forth in Section 41-196(c). Operational standards will ensure the project remains in compliance with all applicable codes and regulations related to alcohol sales to ensure that the use does not impact neighboring properties or create an attractive nuisance. The facility will be maintained as a full-service, bona -fide eating establishment, having suitable kitchen facilities and supplying Resolution No. 2016-45 Page 2 of 4 31 E-18 an assortment of foods commonly ordered at various hours of the day. Additionally, the restaurant will utilize less than five (5%) percent of the gross floor area for the display and storage of alcoholic beverages, which is the maximum threshold established by the Santa Ana Municipal Code. 5. That the proposed use will not adversely affect the General Plan of the city or any specific plan applicable to the area of the proposed use. The proposed ABC license will not adversely affect the General Plan. Restaurants that offer alcoholic beverages as an ancillary amenity are permitted within the District Center (DC) General Plan land use designation. The project is consistent with several goals and policies of the General Plan, including Goal 2 of the Land Use Element, which promotes land uses that enhance the City's economic and fiscal viability and that mitigate any potential impacts such as loitering, disturbing the peace, graffiti and other crimes that impact surrounding businesses. Furthermore, the project is consistent with Policy 2.2 of the Land Use Element, which encourages land uses that accommodate the City's needs for goods and services. The granting of this application is also consistent with Policy 5.5 of the Land Use Element of the General Plan, which encourages projects that are compatible with and supporting of surrounding land uses. Olive Garden is located in a commercial area and its operations will be compatible with the surrounding commercial businesses. E. In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to allow the on -premise sale of alcoholic beverages at a full-service restaurant within an existing structure. No expansion of square footage or physical land disturbance are proposed as part of this project. General Rule Exemption/Environmental Review No. 2016-142 will be filed for this project. 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. Resolution No. 2016-45 Page 3 of 4 31 E-19 Section 3. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2016-40 and incorporated herein for the project located at 2791 North Main Street. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Planning Commission Action dated November 28, 2016, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. ADOPTED this 28th day of November, 2016. AYES: Commissioners: Alderete, Bacerra, Verino (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney Bauer, Gartner, McLoughlin, Mendoza, Lynnette Verino Chairperson CERTIFICATE OF ATTESTATION AND ORIGINALITY I, ROSA BARELA, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2016-45 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on November 28, 2016. Date: Acting Recording Secretary City of Santa Ana 31 E-20 Resolution No. 2016-45 Page 4 of 4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: CONDITIONAL USE PERMIT NO. 2016-42 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON -PREMISE CONSUMPTION AND CONDITIONAL USE PERMIT NO. 2016-43 TO ALLOW AFTER- HOURS OPERATION UNTIL 2:00 A.M. FOR GU RAMEN LOCATED AT 304 NORTH MAIN STREET - GREGG HANOUR, APPLICANT (STRATEGIC PLAN NO. 3, 2, 4) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: usiaOMAX ❑ As Recommended ❑ As Amended ❑ Ordinance on I' Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution �] Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2016-42 and Conditional Use Permit No. 2016-43 as conditioned. PLANNING COMMISSION ACTION At its regular meeting on November 28, 2016, by a vote of 7:0, the Planning Commission adopted a resolution approving Conditional Use Permit No. 2016-42 to allow a the sale of alcoholic beverages for on -premise consumption at an existing eating establishment and Conditional Use Permit No. 2016-43 as conditioned to allow business operations until 2:00 a.m. for Gu Ramen restaurant at 304 North Main Street located in the Transit Zoning Code/Specific Development No. 84 (SD -84) zoning district. The Planning Commission made no changes to the recommendation outlined in the attached staff report (Exhibit A). DISCUSSION Gu Ramen is a locally owned Japanese restaurant located in the Historic Downtown of Santa Ana. The restaurant opened its doors in August 2016 to its patrons and since then has been offering a variety of ramen dishes to its clients. Gu Ramen intends to provide a dining experience with fresh ingredients to its locals and visitors. The proposed addition of alcoholic beverage and after-hours to the existing eating establishment is intended to provide an ancillary menu option and will not become an attractive nuisance. Full-sized site plans are available for public viewing in the Clerk of the Council Office. 31 F-1 CUP Nos. 2016-42 & 2016-43 — Gu Ramen Alcoholic Beverages and & After -Hours at 304 North Main Street December 20, 2016 Page 2 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 #4 (continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining and entertainment destination). FISCAL IMPACT There is no fiscal impact associated with this action. Hassan Hazy ani, CP Executive Director Planning & Building Agency EM:rb M:\Projects\CUP16-42&43 Gu Ramen.cc Exhibit: A. Planning Commission Staff Report 31 F-2 REQUEST FOR NOVEMBER 28, 2016 TITLE: PUBLIC HEARING — FILED BY GREGG HANOUR FOR CONDITIONAL USE PERMIT NO. 2016.42 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON -PREMISE CONSUMPTION AND CONDITIONAL USE PERMIT NO. 2016-43 TO ALLOW AFTER-HOURS OPERATION FOR GU'RAMEN LOCATED AT 304 NORTH MAIN STREET (STRATEGIC PLAN NO. 3,2) Prepared by Escarlet Mar _. Executive D rect r PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended CI As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO :!f��Plan�nlngMan er RECOMMENDED ACTIONS 1. Adopt a resolution approving Conditional Use Permit No. 2016-42. 2. Adopt a resolution approving Conditional Use Permit No. 2016-43 as conditioned. Request of ADDIlcant Gregg Hanour, representing Gu Raman Restaurant, is requesting approval of a conditional use permit (CUP) to allow the sale of alcoholic beverages for on -premise consumption at an existing eating establishment located at 304 North Main Street. In addition, the applicant is requesting approval of a separate CUP to allow the restaurant to operate until 2:00 a.m. Establishments that sell alcoholic beverages and that operate between 12:00 a.m. and 7:00 a.m. require approval of respective CUP's pursuant to Section 41-2007 of the Santa Ana Municipal Code (SAMC). Project Location and Site Description The subject site is a 0.14 -acre parcel of land located at the northwest corner of Main Street and Third Street. The business is located in a 6,200 square feet occupied by business and is within walking distance of a City owned parking structure adjacent to the restaurant. The General Plan land use designation for this property is District Center (DC), which allows for a mixture of high-rise office, commercial and residential uses. The project is consistent with the General Plan land use designation. The site is located within the Transit Zoning Code (SD -84) zoning district in the Downtown sub -district. The SD -84 zoning district allows for a mixture of commercial and residential uses. The proposed project is consistent with the zoning for the site. Surrounding land uses include religious facility to the north, an eating establishment to the south, a City -owned parking structure to the west, and commercial uses to the east across Main Street (Exhibits 1, 2 and 3). EXHIBIT A 31 F-3 CUP Nos. 2016-42 & 2016-43 November 28, 2016 Page 2 Prolect Descriotlon Gu Ramen is requesting approval of a CUP to allow the on -premise sale of alcoholic beverages to patrons of the restaurant. The alcohol sales component is ancillary to the primary food use and will only be sold in conjunction with a food purchase,. The restaurant will provide a full service, sit-down eating experience with approximately 37 seats within its dining room, The restaurant portion consists of approximately 1,140 square feet in total and provides multiple seating arrangements throughout its restaurant. The alcoholic beverages will be stored within a walk-in cooler at the rear of the restaurant within the enclosed kitchen/prep area and will consist of less than five percent of the floor area (Exhibits A), Additionally; the applicant is requesting approval of a separate CUP to allow the business to operate afterhours, If the CUP is approved, the hours of operation will be `limited to between 7:00 a.m, and 2:00 a.m.. daily. Project Background The subject site, Gu Ramen, is located in the Historic Downtown of Santa Ana. The building where the restaurant is located was built in 1923 and hosts a variety of mixed uses. Currently, tenants consist of restaurants, a retail use ,and a bar: The proposed addition of alcoholic beverage to the existing eating establishment is intended to provide an ancillary menu option to patrons, The applicant currently intends to provide beer and wine sales only. Locally -owned Gu Ramen is a Japanese cuisine restaurant known for its rumen and noodle dishes. The restaurant opened its doors in August 2016 to its patrons. The restaurant serves a variety of dishes that range from Tamen soups to fried rice. Gu Ramen intends to provide a dining experience with fresh ingredients to locals and visitors. With no tenant improvements and expansion proposed at this time, the restaurant will have a maximum occupancy of 37 patrons. No outdoor business activities are proposed at this time. Project, Analysis Conditional use permit requests are governed by Section 41-638 of the SAMC. Conditional use permits may be granted when it can be shown that the proposed project will not adversely impact the community. If these findings can be made, then it is appropriate to grant the conditional use permit. Conversely, the inability to make these findings would result in a denial. Staff has prepared the following analysis, which in turn forms the basis for the recommendation contained in this report. 31 F-4 CUP Nos. 2016-42 & 2016-43 November 28, 2016 Page 3 On -Premise Alcoholic Beverage Sales CUP The purpose of regulating establishments that sell alcoholic beverages is to set forth operating practices and procedures, and to minimize impacts to surrounding areas. Staff has reviewed the applicant's request to sell alcoholic beverages for on -premise consumption. Since the proposed use is intended to provide an added amenity to the restaurant, and the sale of alcoholic beverages will be ancillary to the primary use as an eating establishment, staff recommends approval of the proposed CUP. The proposed sale of alcoholic beverages for on premise consumption will not be detrimental to the health, safety; and welfare of the community. Gu Ramen is an established restaurant business with a history of service to the community and visitors of the City. The existing eating establishment and proposed alcoholic beverage service will enhance the economic viability of the area and create a more attractive dining opportunity for visitors and residents in the community. Moreover; the proposed CUP will be in compliance with all regulations, including alcohol storage and display area, standards as set forth in Section 41-196(c) of the SAMC. Further the site will be in compliance with all the operational standards set forth in Section 41-196(g) of the SAMC, which govern the on -premises sale of alcoholic beverages (Exhibit 5), After -Hours Operations CUP The proposed after-hours conditional use permit will allow the proposed restaurant to remain open past 12.00 a.m. until 2:00 a.m. Gu Ramen is located in Downtown Santa Ana surrounded by offices, retail stores, and similar full service restaurants. Conditions of approval have been placed upon the use that will minimize the possibility for any potential noise or safety impacts typically associated with after-hours operations. Finally, because no outdoor seating is proposed at the location, all business activity will be contained within the building, mitigating any noise impacts to surrounding land uses. The proposed CUP's will be consistent with several goals and policies of the General Plan, including Goal 2 of the Land Use Element, which encourages land uses that enhance the City's economic and fiscal viability. Gu Ramen proposes to provide an additional amenity as part of the restaurant operations by serving alcoholic beverages to guests and residents of the City. Police Department Analysis The Police Department reviews conditional use permit applications for the sale and service of alcoholic beverages and after-hours operation in order to ensure that the potential crime and nuisance behaviors associated with alcohol consumption are mitigated to the greatest extent possible. For on -sale licenses, the Police Department analyzes the crime rate in the area using 31 F-5 CUP Nos. 2016-42 & 2016-43 November 28, 2016 Page 4 the standards and definitions contained in the Business and Professions Code Section 23948,4(c)(2), which also are utilized by the State Department of Alcoholic Beverage Control (ABC). This section defines "reported crimes" as criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors, except traffic citations. The Police Department has reviewed the application and has noted that the restaurant is located within Reporting 'District No. 1$5. This reporting district is higher than the average number of reported crimes In all reporting districts. The Police Department contends that the operational standards applicable to on -..premise alcoholic beverages sales will mitigate any potential impacts to the surrounding community. Moreover, the proposed conditional use permit will also be consistent with similar restaurants in the area that sell alcoholic beverages for on -premise consumption that remain open past 12;00 a.m. Therefore, the Santa Ana Police Department does not oppose the granting of a CUP to this business, Public Notification The project is located within the boundaries of the Downtown Neighborhood Association. Staff contacted the president of the Downtown Neighborhood Association to ensure that she was notified of this project and to Identify any areas of concern. The representative had no further comments regarding the proposed CUP at the time the staff report was prepared. The project site was also posted with a notice advertising. this public hearing, a notice was published in the Orange County Reporter, and mailed notices were sent to all property owners and tenants within 500 feet of the project site. No comments have been received as of the date of printing of this report. CEQA Complianoe In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to allow the on -premise sale of alcoholic beverage at a full-service restaurant within an existing structure. There is no reasonable possibility that the project will have a significant effect on the environment due to the facility having the necessary infrastructure to operate the proposed use. Categorical Exemption Environmental Review No. 2016-149 will be filed for this project. Strateaic Plan Allonment 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). 31 F-6 CUP Nos. 2016-42 & 2016-43 November 28, 2016 Page 5 Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Conditional Use Permit No. 2016-42 and Conditional Use Permit No. 2016-43 as conditioned. >� Escarlet Mar Planning Technician EM:jm MAProjects\CUP16-42W Gu Ramen.pc Attachments: Exhibit 1 — Vicinity Map Exhibit 2 — Location Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan & Floor Plan Exhibit 5 — Operational Standards for On -Sale Establishments 31 F-7 Tmv�r+ sr. w � (� rpp5 e sr -a 1 .NLS' I R3-i[llt NlR3- Ra q �ua 11 mie SW3 ISp.3. tll NPO GC 11 _ ■0 CL �= ■ r E vum � P r p SPtlI . P sUan Al G5W ACACJLTURALf -B FARNNGMODIRCAMON GSA OWMEGALSOMMAIN C1 O_MMUNITYMMMS:IAL CI&D CCWCOMMF%7AUMUMM DISHCF C2 GINGRALMNMBUAL ca MMLIAMES3 0-A C5fTM 9IJSNErAPoISFMLAGE G R.ANNE)WORNNG.CBNM rb ART RALaMNMEFCAL I5p R Rl- • zu Ra- lue y�, {sm SP -3 ni d 'S2 RR SP:e SP3 SP -3 hy; P5P-J 11 SP -3 l UC U p D1' e su-z Mli SP.3 CR C<MAMOUALSIMI) NHAL w cn m1M9NFCOm Mt UC44TINDUSML M2 HCVYINDLPURAL M° MI°TAWOFMATIONS O Op GwA(X P FidJF nwI' FCA PANNE)MMMUNITYmei"ENT FM RANN®FODDITIALOE/H.OFMWT r--ir—I r m SNG.BFAMILYFENDHNTIAL m WOFAMILYFEIOBNCE W MULTIFL MSTYMIJUIPLE FAMILYFE90E NCE pA 9JBUFRANAiNRUMIS (s rOMTALESWE 8� ssR°F,AN CUP 2016-42 & CUP 2016-43 GU RAMEN ON -SALE ABC AND AFTER HOURS G� 304 NORTH MAIN STREET -=BDD F&T "= 400FEET EXHIBIT 1 VICINITY MAP 31 F-8 4TH COMMERCIAL C D M M E R " I A L 3RD 2ND Wilu�1 STREET STREET IC 0 M I R C I A L C O M M E R C I A L STREET CUP 2016-42 & CUP 2016-43 GU RAMEN ON -SALES ABC AND AFTER HOURS 304 NORTH MAIN STREET P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31 F-9 r Ln u Lu s 0 Q v 2ND Wilu�1 STREET STREET IC 0 M I R C I A L C O M M E R C I A L STREET CUP 2016-42 & CUP 2016-43 GU RAMEN ON -SALES ABC AND AFTER HOURS 304 NORTH MAIN STREET P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31 F-9 CUP 2016-42 & CUP 2016-43 GU RAMEN ON -SALE ABC AND AFTER-HOURS 304 NORTH MAIN STREET SITE PHOTO EXHIBIT 3 31 F-10 , .rm EXHIBIT ![ , \ 2 ) || }{}!! | .|I;l;] , .rm EXHIBIT Sec. 41.196. Establishments selling alcoholic beverages. Operational standards for on -sale establishments, The following operational standards shall be included as informational conditions in the conditions of approval for the conditional use permit required pursuant to Section 41-196 The premises shall at all times be maintained as a bona -fide eating establishment as defined In Section 23038 of the California Business and Professions code and shall provide a menu containing an assortment of foods normally offered, The premises must have suitable kitchen facilities and supply an assortment of foods commonly ordered at various hours of the day. Full and complete meals must be served whenever the privileges of the on -sale license are being exercised. 2. There shall be no fixed bar or lounge area upon the premises maintained for the sole purpose of sales, service or consumption of alcoholic beverages directly to patrons. A fixed bar or lounge may be permitted if patrons may order food being offered to the general patrons of the eating establishment. 3. The sales, service, and consumption of alcoholic beverages shall be permitted only between the hours of 8:00 a.m. and 12:OO a.m. unless otherwise amended by the granting of a conditional use permit for after-hours operations pursuant to Santa Ana Municipal Code Chapter 41. 4. It shall be the applicant's responsibility to ensure that no alcoholic beverages are consumed on any property adjacent to the licensed premises under the control of the applicant, with the exception of any enclosed patio areas. 5. The applicant or an employee of the licensee must be present to monitor all areas of the establishment, including outdoor patios, during all times that alcoholic beverages are being served or consumed. 6. All employees serving alcoholic beverages must complete Responsible Beverage Service Training, or an equivalent approved by the State Department of Alcoholic Beverage Control, ,prior to being able to serve alcoholic beverages to patrons. Evidence of the completion of such training must be maintained on the premises and available for inspection upon request by the City. 7. During those times when patrons are restricted to 21 years of age or older, the applicant shall at all times utilize an age verification means or device for all purchases of alcoholic beverages. Such verification of age is not intended to discriminate against patrons based on race, ethnicity or legal status, but only to comply with state law restricting the sale of alcohol to those 21 and older. 8, Queuing lines shall be managed in an orderly manner and all disruptive and/or intoxicated patrons shall be denied entry. The business owner, or his designee, shall be responsible for monitoring the queuing lines at all times. EXHIBIT 5 1 of 4 31 F-12 9. The outdoor queuing line shall not block public walkways or obstruct the entry or exit doors of adjacent businesses. Stanchions or 'barriers must be used to maintain order at all times the queue exceeds 25 patrons. All stanchions or barriers located on public property must be approved by the Public Works Agency. 10. Employees and contract security personnel shall not consume any alcoholic beverages during their work shift, except for product sampling for purposes of employee education about new products.. Under no circumstances may contract security personnel consume alcoholic beverages during their work shift. 11. There shall be no exterior advertising of any kind or type, including window signs or other signs visible from outside, that promote or indicate the availability of alcoholic beverages on the premises. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. Permissible window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. Floor displays shall not exceed three feet in height. 12. There shall be no promotions encouraging intoxication or drinking contests or advertisements indicating "buy one drink, get one free", "two for the price of one", or "all you can drink for-." or similar language. 18. Any pool tables, amusement machines or video games maintained on the premises at any time must be reviewed and approved in a security plan submitted to the Chief of Police. 14, Live Entertainment, including but not limited to, amplified music, karaoke, performers and dancing, shall be subject to the issuance of an entertainment permit pursuant to Santa Ana Municipal Code ("SAMC") Chapter 11 — Entertainment, and shall comply with all of the standards contained therein. Notwithstanding this requirement, music/noise shall not be audible beyond 20 feet from the exterior of the premises in any direction. 15. Neither the applicant, nor any person or entity operating the premises with the permission of the applicant, shall violate the City's adult entertainment ordinance contained in SAMC Section 12-1 and 12-2. 16. The premises shall not be operated as an adult entertainment business as such term is defined in SAMC Section 41-1701.6. 17. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises under the control of the licensee. 18. There shall be no public telephones located on the exterior of the premises. All interior pay phones must be designed to allow outgoing calls only. 2of4 31 F-13 19. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted within 24 hours of being applied. 20. Existing bona fide eating establishment and required parking must conform to the provisions of Chapter 8, Article 11, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project lighting; door/window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located In required landscape planters. Prior to issuance of Letter of Approval to the Alcohol Beverage Control Board, this condition must be complied with. 21. A timed -access cash controller or drop safe must be installed. 22. Install a silent armed robbery alarm. 23. The owner or manager of the licensed premises shall maintain on the premises a written security policy and procedures manual that has been approved by the Police Department, addressing at a minimum the following items: a. Procedures for handling obviously intoxicated persons. b. The method for establishing a reasonable ratio of employees to patrons, based upon activity level, in order to ensure adequate staffing levels to monitor beverage sales and patron behavior. c. Procedures for handling patrons involved in fighting, arguing or loitering about the building, and/or in the immediate adjacent area that is owned, leased, rented or used under agreement by the Licensee(s). d. Procedures for verifying the age of patrons for purposes of alcohol sales. e. Procedures for ensuring that servers monitor patrons to ensure that their drinking limitipotential intoxication is not exceeded. This procedure should include a description of the procedure the server would use to warn, or refuse to serve, the patron. Procedures for calling the police regarding :observed or reported criminal activity. g. Procedures for management of queuing lines. h. The location and description of any video games proposed to be on the premises. 3of4 31F-14 24. The operator shall be responsible for submitting a detailed outdoor fencing and dining plan where outdoor dining is proposed as park of the business operation. If the proposed dining area or fencing is in the public right of way, the applicant must obtain all required permits and approvals from the Public Works Agency. 25. Combined alcohol storage and display areas shall not exceed five percent (5%) of the gross floor area of the licensed establishment. 4of4 31 F-15 LS 11.28.16 RESOLUTION NO. 2016-46 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2016-42 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON -PREMISE CONSUMPTION AND CONDITIONAL USE PERMIT NO. 2016-43, AS CONDITIONED, TO ALLOW AFTER HOURS OPERATION AT GU RAMEN RESTAURANT LOCATED AT 304 NORTH MAIN STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Conditional Use Permit No. 2016-42 to allow the sale of alcoholic beverages for on -premise consumption and Conditional Use Permit No. 2016-43 for after-hours operation for the property located at 340 North Main Street. B. Santa Ana Municipal Code Section 41-2007(a) requires a conditional use permit for the sale of alcoholic beverages for on-site consumption that is ancillary to the primary restaurant use. C. Santa Ana Municipal Code Section 41-2007(a) requires a conditional use permit to allow any business to operate between the hours of 12:00 a.m. and 7:00 a.m. D. On November 28, 2016, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2016-42 and Conditional Use Permit No. 2016-43. E. The Planning Commission determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code (SAMC) Section 41-638, have been established for Conditional Use Permit No. 2016-42 to allow for sale of alcoholic beverages for on -premise consumption: 1. That the proposed use will provide a service or facility which will contribute to the general well-being of the neighborhood or the community. The proposed sale of alcoholic beverage for on -premise consumption at this location will provide an ancillary service Resolution No. 2016-46 Page 1 of 7 31 F-16 to the restaurant's customers by allowing them the ability to purchase a variety of alcoholic beverages with their food. This will thereby benefit the community by providing a restaurant with an additional and complementary food - related amenity. Standards are applicable to the alcoholic beverage control license which will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. That the proposed use under the circumstances of the particular case will not be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. The proposed sale of alcoholic beverage for on -premise consumption at this location will not be detrimental to persons residing or working in the vicinity because operational standards applicable to the alcoholic beverage control license will mitigate any potential negative or adverse impacts created by the use. This is primarily a restaurant use and the addition of alcohol will be ancillary to the main use. Finally, the sale of alcohol in the restaurant is intended to be incidental to the primary use as an eating establishment and will occur within the premises. 3. That the proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. The proposed use will not adversely affect the economic stability of the area, but will instead allow the restaurant to compete with other nearby restaurants that also offer a full selection of alcoholic beverages for sale to their guests and other visitors. Moreover, the offering of alcoholic beverages will allow Gu Ramen, a locally owned restaurant, to remain economically viable and compete with nearby full-service restaurants in the vicinity and contributes to the overall success of the City of Santa Ana. 4. That the proposed use shall comply with the regulations and conditions specified in Chapter 41 for such use. The proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant selling alcoholic beverages for on -premise consumption pursuant to Chapter 41 of the Santa Ana Municipal Code. The facility will be maintained as a full- service, bona -fide eating establishment, having suitable kitchen facilities and supplying an assortment of foods commonly ordered at various hours of the day. Additionally, the restaurant will utilize less than five (5%) percent of the Resolution No. 2016-46 Page 2 of 7 31 F-17 gross floor area for the display and storage of alcoholic beverages, which is the maximum threshold established by the Santa Ana Municipal Code. 5. That the proposed use will not adversely affect the General Plan or any specific plan of the City. The proposed sale of alcoholic beverage for on -premise consumption at this location will not adversely affect the General Plan. The granting of this conditional use permit supports several policies contained in the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. Providing a variety of full-service restaurants that feature alcoholic beverages on their menus offers additional dining options for Santa Ana residents and visitors. Finally, Policy 5.5 of the Land Use Element encourages development that is compatible with and supporting of surrounding land uses. Gu Ramen will be located in the City's Downtown area and its operation will be compatible with the surrounding businesses. F. The Planning Commission determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code (SAMC) Section 41-638, have been established for Conditional Use Permit No. 2016-43, as conditioned, to allow for after-hours operation: 1. That the proposed use will provide a service or facility which will contribute to the general well-being of the neighborhood or the community. The proposed after-hours operations will provide an ancillary service to individuals that wish to have a late night meal. This will thereby benefit the community by providing a food - related amenity offering service past 12:00 midnight, which is consistent with that of other restaurants in the Downtown area. Conditions have been placed on this operation to mitigate any potential problems created by the after-hours operation to ensure that service past 12:00 midnight will not negatively impact the surrounding community, such as requiring the establishment to maintain a complete food menu past midnight, disallowing outdoor restaurant activity, and limiting amplified sound to within the building. 2. That the proposed use under the circumstances of the particular case will not be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. Resolution No. 2016-46 Page 3 of 7 31 F-18 The proposed after-hours operations will not be detrimental to those living or working in the area because conditions have been placed to mitigate any negative impacts on the community. These conditions are consistent with other eating establishments that have similar hours of operation and similar operational conditions. The after -hour conditions limit operations to indoor activities after the midnight hour, therefore mitigating any outside ambient noise, as well as limiting the amplified sound within the building. 3. That the proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. The proposed use will not adversely affect the economic stability of the area, but will instead allow the restaurant to compete with other nearby restaurants that also offer extended business hours of operation to their guests and other visitors. Moreover, the offering of after-hours will allow Gu Ramen, an existing locally -owned restaurant, to remain economically viable and compete with nearby full-service restaurants in the vicinity and contributes to the overall success of the City of Santa Ana. 4. That the proposed use shall comply with the regulations and conditions specified in Chapter 41 for such use. The proposed project will be in compliance with all applicable regulations and conditions imposed on an eating establishment operating after-hours pursuant to Chapter 41 of the Santa Ana Municipal Code and the Transit Zoning Code (SD84) zoning provisions. The establishment will contain the necessary equipment to qualify as an eating establishment, and operational standards applicable to the proposed after-hours that will prevent or mitigate any impacts from the restaurant onto adjacent properties. 5. That the proposed use will not adversely affect the General Plan or any specific plan of the City. The proposed use will not adversely affect the General Plan. The granting of this conditional use permit supports several policies contained in the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. Providing a variety of full-service restaurants with extended hours of operation offers additional dining options for Santa Ana residents and visitors. Furthermore, Policy 5.5 of the Land Use Element encourages development that is compatible with and supporting of surrounding land uses. Gu Ramen Restaurant Resolution No. 2016-46 Page 4 of 7 31 F-19 is located in the Downtown and its operations will be compatible with the surrounding commercial businesses. G. In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to allow the on -premise sale of alcoholic beverages at a full-service restaurant within an existing structure and after-hours operation. There is no reasonable possibility that the project will have a significant effect on the environment due to the facility having the necessary infrastructure to operate the proposed use and that no expansion of square footage is proposed. Categorical Exemption Environmental Review No. 2016-149 will be filed for this project. 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 Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2016-42 and Conditional Use Permit No. 2016-43, as conditioned in Exhibit A, attached hereto and incorporated herein. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Planning Commission Action dated November 28, 2016, and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. ADOPTED this 28`" day of November, 2016 by the following vote: AYES: Commissioners: Alderete, Bacerra, Bauer, Gartner, McLoughlin, Mendoza, Verino (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Resolution No. 2016-46 Page 5 of 7 31 F-20 Lynnette Verino Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, ROSA BARELA, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2016-46 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on November 28, 2016. Date: Acting Recording Secretary City of Santa Ana 31 F-21 Resolution No. 2016-46 Page 6 of 7 EXHIBIT A Conditions for Approval Conditional Use Permit No. 2016-43 for after-hours operations 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 belowrip or to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. 1. The premises shall at all times be maintained as a bona -fide eating establishment as defined in Section 23038 of the California Business and Professions Code and shall provide a menu containing an assortment of foods normally offered. The premises must have suitable kitchen facilities and supply an assortment of foods commonly ordered at various hours of the day. 2. There will be no outdoor restaurant activity. 3. Any and all existing or new lighting on the building's exterior must be maintained in good working order. 4. All exterior lighting will be directed towards the restaurant and/or sidewalk and not towards other properties. 5. There shall be no amplified sound used outside the building. 6. Live Entertainment, including but not limited to, amplified music, karaoke, performers and dancing, is subject to compliance with Santa Ana Municipal Code Chapter 11 and shall comply with all of the standards contained therein. Notwithstanding this requirement, music/noise shall not be audible beyond 20 feet from the exterior of the premises in any direction. Resolution No. 2016-46 Page 7 of 7 31 F-22 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: ORDINANCE TO COMPLY WITH NEW STATE LAW (PROP 64); ORDINANCE TO REGULATE INDOOR CULTIVATION OF MARIJUANA FOR PERSONAL USE; REQUIRE INDIVIDUALS OBTAIN RESIDENTIAL CULTIVATION PERMIT SUBJECT TO REASONABLE REGULATIONS; PROHIBIT INDOOR COMMERCIAL AND OUTDOOR MARIJUANA CULTIVATION (STRATEGIC PLAN 1; 3; 4; 5) ITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt an ordinance amending Chapter 18 to limit indoor cultivation of marijuana to no more than six (6) living marijuana plants by individuals 21 years of age or older for personal use in a private residence or accessory structure within the City of Santa Ana per Proposition 64. 2. Require individuals obtain a residential cultivation permit subject to reasonable regulations. 3. Completely ban commercial and outdoor marijuana cultivation. DISCUSSION On December 15, 2015, the City adopted Ordinance No. NS -2889 banning the cultivation of marijuana or medical marijuana anywhere in the City (Santa Ana Municipal Code Section 18- 620(e).) On June 28, 2016, the Secretary of State certified Prop 64, the Control, Regulate, and Tax Adult Use of Marijuana Act ('Prop 64") for the November 8, 2016 ballot. Prop 64, provides for the legalization of non-medical (recreational) marijuana use. Specifically, Prop 64 authorizes individuals 21 years of age or older to plant, cultivate, harvest, dry, or process no more than six (6) living marijuana plants for personal use at a private residence. A city may enforce "reasonable regulations" related to such marijuana cultivation but may not prohibit cultivation from occurring in a private residence or accessory structure. However, cities are authorized to completely prohibit 50A-1 Ordinance to Comply with New State Law and Regulate Indoor Cultivation December 20, 2016 Page 2 outdoor cultivation. On November 8, 2016, 57% of the electorate voted "Yes" on the Proposition and the provisions of Prop 64 took effect on November 9, 2016. The proposed Ordinance amends Ordinance NS -2889 which completely banned all cultivation within the City, to comply with Prop 64. Specifically, the proposed ordinance amends Chapter 18 of the Santa Ana Municipal Code and seeks to regulate indoor cultivation of up to six (6) living marijuana plants for personal use in a private residence or accessory structure with reasonable regulations and limits such cultivation to individuals 21 years of age or older who obtain a residential cultivation permit. The proposed amendment would maintain a citywide prohibition on indoor commercial and outdoor marijuana cultivation. The proposed Ordinance requires applicants pay a fee prior to the issuance of a residential cultivation permit to defray, in part, the cost of investigation and inspection. The residential cultivation permit fee will be established by a subsequent resolution of the City Council. The proposed Ordinance supports and reaffirms the objective of Ordinance NS -2864 and promotes the health, safety and welfare of the residents of Santa Ana. Staff recommends the approval of the proposed ordinance. STRATEGIC PLAIN ALIGNMENT Approval of this item supports the City's efforts to meet Goal No. 1 Community Safety, Goal No. 3 Economic Development, Goal No. 4 Government Financial Stability, and Goal No. 5 Community Health, Livability, Engagement and Sustainability. FISCAL IMPACT There is no fiscal impact associated with this action. A future item will be presented to the City Council that will provide the cost and fee structure of the residential cultivation permit program. Hassan Hacjfiani,ACP Executive Director of Planning & Building Agency City of Santa Ana Exhibit: 1. Ordinance 50A-2 arc. ,,--- Sonia R. Carvalho City Attorney City of Santa Ana TB 12/20/16 ORDINANCE NO. NS - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO COMPLY WITH NEW STATE LAW (PROP 64); ORDINANCE TO REGULATE INDOOR CULTIVATION OF MARIJUANA FOR PERSONAL USE TO NO MORE THAN SIX (6) LIVING MARIJUANA PLANTS WITHIN A PRIVATE RESIDENCE SUBJECT TO REASONABLE REGULATIONS; REQUIRE INDIVIDUALS OBTAIN RESIDENTIAL CULTIVATION PERMIT, PROHIBIT COMMERCIAL AND OUTDOOR MARIJUANA CULTIVATION 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. On December 15, 2015, the City Council approved passed Ordinance No. 2889 banning the cultivation of marijuana or medical marijuana anywhere in the City. Per the approval of Prop 64, the City now desires to limit and regulate indoor cultivation of marijuana for personal use to no more than six (6) living marijuana plants within a private residence subject to reasonable regulations and require individuals 21 years old or older, to obtain a residential cultivation permit for such cultivation. The City also desires to continue to ban outdoor marijuana cultivation and indoor commercial marijuana cultivation within City limits to the extent allowed by California law. This Ordinance effectuates that aim. On June 28, 2016, the Secretary of State certified Prop 64, the Control, Regulate, and Tax Adults Use of Marijuana Act ("Prop 64"), for the November 8, 2016 ballot; 2. On November 8, 2016, 57% of the electorate voted "Yes" on the Proposition and the provisions of Prop 64 took effect on November 9, 2016, 3. Prop 64 authorizes the cultivation by individuals 21 years of age or older to plant, cultivate, harvest, dry, or process up to six (6) living marijuana plants in private residence for personal use. 4. The provisions of the AUMA and its amendments to the Health and Safety Code took effect on November 9, 2016. 5. Pursuant to the AUMA, the City may enact reasonable regulations for the cultivation of non-medical marijuana that occurs inside a residence or accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure area. (Health and Safety Code sections 11362.2(a)(1) and 11362.2(b)(1).) The City may completely prohibit outdoor nonmedical marijuana cultivation until such time as the California Attorney 50A-3 Ordinance No. NS-__ Page — of General determines that non-medical use of marijuana is lawful in California under Federal law. The City may also prohibit indoor commercial cultivation. 6. The California Attorney General has not made a determination that non-medical use of marijuana is lawful in California under Federal law, 7. The City of Santa Ana has a compelling interest in ensuring it is compliant with State law and that marijuana is not cultivated in an illegal manner, in protecting the public health, safety and welfare of its residents and businesses, and in preserving the lawful use of land within its borders. B. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Pursuant to the California Environmental Quality Act ("CEQK) and the state CEQA Guidelines, the adoption of this Ordinance is exempt from CEQA review pursuant to California Code of Regulations section 15061(b)(3), which is applicable if it can be seen with certainty that there is no possibility that the project may have a significant effect on the environment. As a result, a Notice of Exemption will be filed upon the adoption of this ordinance. Section 3. Section 18-611, subdivisions (i) through (r) are hereby added to Article XIII of Chapter 18 of the Santa Ana Municipal Code to read in full as follows: (i) "Private Residence" shall have the same definition as that contained in Health and Safety Code section 11362.2(5). (j) "Premises" means a single, legal parcel of property. Where contiguous legal parcels under common ownership or control, such contiguous legal parcels shall constitute a single "premises" for purposes of this chapter. (k) "Parcel' means property assigned a separate parcel number by the Orange County assessor. (1) "Marijuana Products" shall have the same definition as that contained in Health and Safety Code section 11018.1. (m) "Marijuana Accessories" shall have the same definition as that contained in Health and Safety Code section 11018.2. (n) 'Personal Cultivation" shall mean the planting, cultivating, harvesting, drying, or processing of marijuana plants for personal use within a private residence or accessory structure to a private residence. 50A-4 Ordinance No. NS - Page — of (o) "Commercial Cultivation" shall mean the planting, cultivating, harvesting, drying, or processing of marijuana plants in any structure other than a private residence. (p) "Outdoor Cultivation" shall mean the planting, cultivating, harvesting, drying, or processing of marijuana plants in any location within the City of Santa Ana that is not within a fully enclosed and secure structure. (q) "Fully enclosed and secure structure" means a space within a building, greenhouse or other structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, provides complete visual screening, and which is accessible only through one or more lockable doors. (r) "Residential Cultivation Permit" shall mean a permit issued by the City of Santa Ana to individuals 21 years of age or older to allow for the personal cultivation of marijuana in a private residence for up to six (6) living marijuana plants subject to reasonable regulations. Section 4. Subsection (e) only of Section 18-620 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby deleted in its entirety: Section 18-620. Compliance with this article and state law. Section 5: Section 18-620 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby amended to add Section 18-620(e), subdivisions (1), (i) -(v) and, (2), (3), (4)(i) -(ii), (5)(i)(1- 5), (6)(i) (iii)(1-5), (iv), and (v) and is to read in full as follows; 18-620. Compliance with this article and state law (e) Cultivation of Marijuana. (1) Personal Cultivation. Individuals 21 years of age or older who obtain a residential cultivation permit as set forth in subdivision (e)(6) may plant, cultivate, harvest, dry, or process up to (6) living marijuana plants for personal use in a private residence or accessory structure to a single private residence in the City of Santa Ana. As a condition to the issuance of a permit, the permit holder must agree to periodic inspections performed by a Code Enforcement Officer and or his/her designee (upon 48 hours' notice) and must comply with the following requirements: (i) The marijuana cultivation area shall be located indoors within private residence or accessory structure on a single parcel of property; 50A-5 Ordinance No. NS - Page _ -of (ii) No more than six (6) living marijuana plants is permitted for indoor personal cultivation; (iii) Marijuana in excess of 28.5 grams produced by plants kept for indoor personal cultivation must be kept in a locked space on the grounds of the private residence not visible from the public right -of way. (iv) There shall be no exterior visibility or evidence of marijuana cultivation outside the private residence from the public right-of- way, including but not limited to any marijuana plants, equipment used in the growing and cultivation operation, or any light emanating from the cultivation; or (v) The cultivation may not violate any California Building, Electrical or Fire Codes or any other health and safety standards. (2) Commercial Cultivation. Commercial cultivation of marijuana or medical marijuana is prohibited anywhere in the City. No person, including a qualified patient or primary caregiver, shall engage, permit, or participate in the commercial cultivation of marijuana in the City. (3) Outdoor Cultivation. Outdoor cultivation of marijuana or medical marijuana is prohibited anywhere in the City. No person, including a qualified patient or primary caregiver, shall engage, permit, or participate in the outdoor cultivation of marijuana in the City. (4) Nuisance, (i) It is hereby declared to be unlawful, a public nuisance, and a violation of this Chapter for any person owning, leasing, occupying, or having charge or possession of any parcel within the City to cause or allow such parcel to be used for the cultivation of marijuana, unless the person is authorized by state law to grow marijuana within a private residence, and such authorized person is complying with all requirements of this Chapter. (ii) No person shall grow marijuana upon any parcel until and unless they first secure a residential cultivation permit from the City of Santa Ana Planning and Building Department as set forth in subdivision (e)(6), (5) Public Nuisance Prohibited. (i) It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any parcel within the City to create a public nuisance in the course of cultivating marijuana plants or any part thereof in any location, indoor or outdoor. A public nuisance may be deemed to exist, if such activity produces: 50A-6 Ordinance No. NS - Page _ of (1) Odors which are disturbing to people of reasonable sensitivity residing or present on adjacent or nearby property or areas open to the public; (2) Repeated responses to the parcel by law enforcement personnel; (3) A repeated disruption to the free passage of persons or vehicles in the neighborhood, excessive noise which is disturbing to people of normal sensitivity on adjacent or nearby property or areas open to the public; (4) Any other impacts on the neighborhood which are disruptive of normal activity in the area including, but not limited to, grow lighting visible outside the dwelling, excessive vehicular traffic or parking occurring at or near the dwelling, and excessive noise emanating from the dwelling. (5) Outdoor and Commercial growing and cultivation of marijuana. (6) Application for residential cultivation permit; contents; required fee. (i) Every person 21 years of age or older who desires to cultivate up to six (6) living marijuana plants shall apply for a residential cultivation permit under this section. The permit shall be issued for a single private residence where the cultivation will take place. (ii) To obtain a residential cultivation permit, application shall be made to the Director of Planning and Building or his or her designated representative. Prior to submitting such application, a nonrefundable fee, as established by resolution of the City Council, shall be paid to the department of finance to defray, in part, the cost of the investigation and inspection required by this article. The City's Department of Finance shall issue a receipt showing that such application fee has been paid. The receipt, or a copy thereof, shall be supplied to the Director of Planning and Building at the time such application is filed. Permit issuance fees required under this article shall be in addition to any license, permit, or fee required under any other chapter of this Code. (iii) Each applicant for a residential cultivation permit shall furnish the following information: (1) The applicant's full true name and physical address of the private residence where the marijuana will be cultivated; (2) A valid California Drivers' License or other government issued identification that clearly states the applicant's date of birth; and (3) The name of each person owning, leasing, occupying, or having charge of any legal parcel or premises where marijuana will be cultivated; 50A-7 Ordinance No. NS - Page _ of (4) If the applicant is leasing the premises, a notarized signature from the owner of the parcel consenting to the cultivation of marijuana at the premises on a form acceptable to the City; (5) If the residence is a condominium complex, a notized signature from the Association consenting to the cultivation of marijuana at the premises on a form acceptable to the City. (iv) The initial permit shall be valid for no more than two years. The applicant must submit a renewal application prior to the expiration of the residential cultivation permit. (v) If the Director of Planning and Building and/or his or her designee finds that any person holding a residential cultivation permit under the provisions of section 18-620(e)(1) through (6) has violated the provisions of this article he or she may revoke the permit. No such revocation shall become effective until the permit holder has been notified in writing by certified mail of his or her right to appeal the revocation or suspension decision pursuant to the provisions of Chapter 3 of this Code. If a timely appeal is filed, the revocation shall be effective only upon decision of the hearing officer. Otherwise the revocation shall become effective after the timely appeal period has passed. 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 day of 2016. Miguel A. Pulido Mayor 50A-8 Ordinance No. NS - Page — of APPROVED AS TO FORM Soniaa,q. Carvalho, City Attorney m Taga4a Bog For City Atto AYES: Councilmembers: NOES ABSTAIN: NOT PRESENT Councilmembers: Councilmembers: Councilmembers: CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Maria Huizar, Clerk of the Council, do hereby attest to and certify that 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 50A-9 Ordinance No. NS - Page — of 50A-10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETINGS DATE: DECEMBER 20, 2016 TITLE: ORDINANCE AMENDING CHAPTER 33, ARTICLE VII, OF THE SANTA ANA MUNICIPAL CODE RELATING TO THE ROLE AND DUTIES OF THE ENVIRONMENTAL AND TRANSPORTATION ADVISORY COMMITTEE {STRATEGIC PLAN NO. 6, 1G} Ile CTTY MANAGE RECOMMENDED ACTION ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 e0 Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO I�Iw�@l�L�il�7�7 Adopt an ordinance amending Chapter 33, Article VII, of the Santa Ana Municipal Code relating to the role and duties of the Environmental and Transportation Advisory Committee. DISCUSSION In 1991, the City Council established the Environmental and Transportation Advisory Committee (ETAC) by adopting Resolution 91-112. Administrative amendments related to ETAC were subsequently approved by Resolutions 92-102 and 92-103. In 1999, Ordinance NS 2414 codified the duties of ETAC in Chapter 33 of the Municipal Code, but only made reference to ETAC duties with respect to trees. In 2014, staff looked into the history of ETAC including Ordinance NS 2414. The City Attorney reviewed that history and determined that ETAC may only advise the City Council on matters related to trees and the urban forest. That determination was brought to the attention of the City Council in 2015 and, as directed by the Council, staff has been collaborating with ETAC to clarify and modernize the roles and responsibilities of ETAC. The current general duties of ETAC consist of acting in an advisory capacity to the City Council on matters regarding public trees in the public right-of-way as they relate to their removal, planting, replanting, or disposition. ETAC is also responsible for recommendations concerning designated tree species on streets and in neighborhoods. When requested by the City Council, ETAC may consider, investigate, make findings, report, and recommend on special matters within the scope of the urban forest. In the updated duties, ETAC will also act in an advisory capacity to the Public Works Agency in the study, review, and development of recommendations 50B-1 Ordinance Amending Chapter 33, Article VII, Role and Duties of ETAC December 20, 2016 Page 2 related to transportation and streetscape master plans, and in reviewing guiding principles on Water and Wastewater matters. The proposed Ordinance (Exhibit 1) clarifies ETAC's roles and responsibilities as described. During the collaboration process, the ETAC bylaws were also updated (Exhibit 2). However, since the amended ordinance will not go into effect until 30 days after the second reading, the bylaws are provided here for reference only. The new bylaws will be presented for adoption after the ordinance has been enacted. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action 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). FISCAL IMPACT There is no fiscal impact associated with this action. Fri --d Mousavipour Executive Director Public Works Agency FM/NEG Exhibits: 1. Ordinance 2. Bylaws 50B-2 )mi 11.30.16 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 33, ARTICLE VII OF THE SANTA ANA MUNICIPAL CODE RELATING TO THE ROLE AND DUTIES OF THE ENVIRONMENTAL AND TRANSPORTATION ADVISORY COMMITTEE 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 Council is authorized pursuant to Santa Ana Charter Section 900 to create by ordinance such appointive boards or commissions as in its judgment are required and is authorized to grant to them powers and duties consistent with the Charter. B. On December 2, 1991, the City Council created and established pursuant to City Council Resolution No. 91-112 the Environmental and Transportation Advisory Committee (ETAC) for the City of Santa Ana, which consists of nine (9) members, citizens, residents and business representatives of the city. C. The various resolutions that govern ETAC have differing references to ETAC's role and duties. D. Ordinance No. NS -2414, which codified the duties of ETAC in Chapter 33 of the Santa Ana Municipal Code, only makes reference to ETAC's duties with respect to trees. E. The City Council seeks to update and clarify the duties of ETAC in order to remove any inconsistencies and ambiguities as to ETAC's role and duties as an advisory body. F. Based on the foregoing, it is necessary to amend sections of the Santa Ana Municipal Code in order to clarify and update the duties of ETAC. SECTION 2. Section 33-183 of the Santa Ana Municipal Code is hereby amended such that it reads as follows: Sec. 33.183. Creation and establishment of the Environmental and Transportation Advisory Committee. (a) On December 2, 1991, the city council created and established under city council Resolution No. 91-112 the environmental and transportation advisory committee Exhibit 1 Ordinance No. NS -XXX 50B-3 Page 1 of 4 (ETAC) for the City of Santa Ana. The Environmental and Transportation Advisory Committee shall be comprised of nine (9) members who shall be qualified electors of the city. The provisions of sections 900 and 900.1 of the Charter of the City of Santa Ana shall govern the appointment, removal, and terms of members of ETAC and the existence of vacancies on ETAC. Membership in ETAC may include one (1) member who shall be nominated by the Santa Ana Chamber of Commerce and one (1) member nominated by the Santa Ana Hispanic Chamber of Commerce within the nine (9) member limit. The members nominated by the Chambers need not be qualified electors of the city. (b) ETAC meetings and procedures shall be resolved and detailed in separately adopted by-laws. SECTION 3. Section 33-184 of the Santa Ana Municipal Code is hereby amended such that it reads as follows: Sec. 33-184. Duties and responsibilities of the Environmental and Transportation Advisory Committee. (a) The duties of ETAC shall consist of acting in an advisory capacity to the city council in the study, review, and recommendations with regard to the removal, planting, replanting or disposition of public trees in the public right of way. ETAC shall review and make recommendations regarding requests for public tree removal by individual property owners, neighborhood associations, or developers. ETAC shall make recommendations on designated species for specific streets and neighborhoods. (b) ETAC will assist in the dissemination of news and information regarding the protection, maintenance, removal and planting of public trees on public property to the city council and citizens of the City of Santa Ana. (c) ETAC, when requested by the city council, shall consider, investigate, make finding, report and recommend upon any special matter of question coming within the scope of the urban forest. (d) The duties of ETAC shall also consist of acting in an advisory capacity to the Executive Director of the Public Works Agency, in the study, review, and recommendation related to master planning of transportation and streetscape matters, and guiding principles on Water and Wastewater matters. (e) ETAC shall provide general input regarding the City's Circulation Element, the Bicycle and Pedestrian Master Plans, and Citywide Complete Streets, and advise on major surface transportation programs. ETAC may also provide input on street environment, streetscape, and right of way aesthetics. (f) Prior to the Public Works Agency presenting principles and policies on Water and Wastewater, the Public Works Agency Executive Director may seek a Ordinance No. NS -XXX Page 2 of 4 50B-4 Jmf 11.3016 recommendation from ETAC regarding guiding principles and policies related to Water and Wastewater. (g) The Public Works Agency Executive Director may seek ETAC's input and comment on transportation projects. 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. SECTION 5. This ordinance shall become effective thirty (30) days after its adoption, SECTION 6. The Clerk of the Council shall certify the adoption of this ordinance and shall cause the same to be published as required by law. ADOPTED this day of 2017. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By:, f John M. Funk Assistant City Attorney AYES: Councilmembers NOES ABSTAIN: Councilmembers Councilmembers Councilmembers Miguel A. Pulido Mayor Ordinance No. NS -XXX 50B-5 Page 3 of 4 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS -XXX Page 4 of 4 50B-6 THE SANTA ANA ENVIRONMENTAL AND TRANSPORTATION ADVISORY COMMITTEE BYLAWS ARTICLE I — THE COMMITTEE SECTION 1. Name of Committee. The name of the Committee shall be the Santa Ana ENVIRONMENTAL AND TRANSPORTATION ADVISORY COMMITTEE. SECTION 2. Duties of the Chair. The chair shall .be'an officer of the committee and preside at all the meetings of the Committee, authorize calls for any special meetings subject to the availability of Public Works Agency staff;, and execute all documents authorized by the Committee. SECTION 3. Duties of the Vice -Chair. The vice -chair shall be an officer of the committee and perform the duties of the chair in the absence or incapacity of the chair; and in the case of the resignation or death of a chair, the vice- chair shall perform duties as are imposed on the chair until such time as the Committee shall elect anew chair. SECTION 4. Recording Secretary, The Executive Director of the Public Works Agency shall appoint an employee to serve as Recording Secretary of the Committee, who shall issue notice of all regular and special meetings, and shall perform such duties as are generally associated with that office. SECTION 5. Additional Duties of Committee Officers. The officers of the Committee shall perform such other duties and functions as may from time to time be required by the Committee, the Santa Ana Municipal Code, the bylaws, or rules and regulations of the Committee. SECTION 6. Appointment/Removal. Committee Members shall be subject to appointment and removal, and shall serve terms in accordance with section 901 of the Charter of the City, of Santa Ana. ARTICLE II — COMMITTEE -OFFICERS SECTION 1. Selection and Term of Officers. The Committee shall have two elected offices: Chair and Vice Chair. The chair and vice -chair shall be elected during the month of June in each calendar year and shall take office effective the first day of July following each said election. Nominations for officers shall be made in person. In the event of a vacancy in the office of chair or vice -chair, the Committee shall elect one of its members to the unexpired term. Exhibit 2 12 20 16 XXX PWA 06b Exh2 ETAC Bylaws.docx 50B-7 1 SECTION 2. Absence of Chair and Vice -Chair. In the event that both the Chair and Vice Chair are absent from the same meeting of the Committee, the Committee shall, as the first order of business, nominate a member to serve as Chair pro tem for the meeting. ARTICLE III — MEETINGS SECTION 1. Time and Place. A. Regular Meetings. Regular meetings of the Cc monthly, on the second Tuesday of the month, 20 Civic Center Plaza, Santa Ana, at 7:30 am not available, in a suitable available alternate I In the event any regular meeting falls on a'holi on the next business day at a time desgm meeting may be adjourned to a time and place B. Special Meetings. Special meetings Chairperson, or by a majority of the Corr Public Works Agency staff. mmittee may be held as frequently as held at Room 1600, City Hall Annex, I., or, in the event that Room 1600 is )cation as decided by the Committee. day, the regular meeting may be held ited by the chairperson. A regular designated by the chairperson. at the direction of the subject to the availability of SECTION 2. Quorum. More than one half of the members shall constitute a quorum for the purpose of conducting the Committee business and exercising its powers and, for all other purposes, but a smaller number may adjourn from time to time until a quorum is obtained. SECTION 3. Order of Business. At the regular meetings of the Committee, the following will be the order of business: 1. Call to Order 2. Pledge of Allegiance 3. Roll Call 4. Public Comments (Agenda Items) 5. Consent Calendar 6. Business Calendar 7. Work Study Session (if any) 8. Public Comments (Non Agenda Items) 9. Staff Member Comments 10. Committee Member Comments SECTION 4. Resolutions. Ali written resolutions shall be designated by number, reference to which shall be inscribed in the minutes and an approved copy shall be filed in the official Book of Resolutions of the Committee. 12 2016 XXX PWA 06b Exh2 ETAC Bylaws.docx 50B-8 2 SECTION 5. Ad -Hoc Committees. The Chair, in consultation with the Committee, may appoint ad-hoc committees created for a specific task on an as -needed basis to study a specific topic or subject and return to the full Committee with a recommendation. SECTION 6. Committee Member Absences. If a member of the Committee absents himself or herself from two (2) regular meetings of the Committee, consecutively, unless by permission of the Committee expressed in its official minutes, or fails to attend at least one-half (1/2) of the regular meetings of the Committee within a calendar year, or is convicted of a crime involving moral turpitude, or ceases to be a qualified elector of the city [except that members representing the Chambers of Commerce shall not be required to be qualified electors of the City], the office shall become vacant and shall be so declared by the city council. A notification, of non-attendance to the Recording Secretary by either e-mail, telephone or through message, relayed by staff or other Committee member may be deemed as an "excused absence" after consideration and vote of a majority of the Committee. Failure to give notification of non-attendance as described herein shall be deemed as "unexcused." SECTION 7. Abstentions and Conflicts of Interest. No member of the Committee shall abstain from any vote unless disqualified. If a member of the Committee feels that he/she is disqualified from voting, the member shall openly state the fact and the nature of the disqualification, and then leave the room during the matter's debate and vote. SECTION 8. Discussion. Each Committee member may speak for five minutes on an agenda item, if he/she desires. Once all Committee Members have had the opportunity to speak, a Committee Member may speak again when recognized by the chair. SECTION 9. Brown Act Compliance. All proceedings of the Committee shall be conducted in accordance with the Ralph M. Brown Act (California Government Code Section 54950 et seq.), as amended from time to time. SECTION 10. Parliamentary Procedures. The current edition of Robert's Rules of Order Newly Revised shall be the authority on all questions of parliamentary procedure, unless in conflict -with the Santa Ana Municipal Code, the laws of the State of California or these bylaws. SECTION 11. Amendment of Bylaws. The Bylaws of the Committee shall be amended only with the approval of at least four (4) members of the Committee at a regular or special meeting, but no such amendment shall be adopted unless at least seven (7) days written notice thereof has been previously given to all members of the Committee. Such notice shall identify the section(s) of the bylaws proposed to be amended. 12 20 16 XXX PWA 06b EA2 ETAC Bylaws.docx 50B-9 3 ARTICLE IV — ACTION ON ITEMS SECTION 1. Manner of Voting and Decision. The voting on Committee agenda items shall be entered upon the minutes of such meeting with the ayes and the noes and any abstentions set forth with specificity. No action shall be taken by the Committee unless it is concurred upon and adopted by the affirmative vote of more than one-half of the Committee members present. Any member who voted with the majority on any action may move for reconsideration of such action only at the same meeting. SECTION 2. Order of Voting. When a motion has been made and seconded, the members of the Committee supporting the motion shall indicate their votes verbally or by a show of hands. SECTION 3. Processing of Motions. A motion shall be made and seconded. Any debate, if any, would then follow. If it is likely there may be confusion as to the motion, the chair should ask the Recording Secretary to read from his/her notes. A motion may not be withdrawn by the mover without the consent of the second and the approval of the Committee. SECTION 4. Motion by Chair. The chair has the right to make or second motions and, in his/her absence, when the vice -chair is acting in the same capacity, he/she has the same right, using discretion and tact as to recognition of other members. SECTION 5. Priority of Motion. When a motion is before the Committee, no motion shall be entertained except (1) to adjourn, (2) to fix hour of adjournment, (3) to lay on the table, (4) for the previous question, (5) to postpone to a certain day, (6) to refer, (7) to amend, and (8) to postpone indefinitely. These motions shall have precedence in the order indicated. SECTION 6. Motion to Approve or Deny. The vote is affirmative when a motion to approve the matter before the Committee is approved by the majority. In the event a motion to deny fails to carry, the chair shall call for a motion to approve. SECTION 7. Tie Vote. In the event of a tie vote on a motion, the Committee shall be deemed to have made no decision, and the Minutes shall reflect the tie vote. SECTION 8. Vote Required on Other Motions. The vote required to decide motions in the affirmative shall be the vote of more than one-half of the members of the Committee present. SECTION 9. Appeal of Decision. Any decision or ruling of the chair may be appealed to the Committee by request of any member and seconded by another. The chair shall then call a vote to see if the chair's decision shall be upheld. 12 2016 XXX PWA 06b EA2 ETAC Bylaws.docx 50B-10 4 SECTION 10. Motion to Reconsider. Any member who voted with a majority may move a reconsideration of any action at the same time or "have entered on the minutes" for vote at the next succeeding meeting. After a motion for reconsideration has once been acted on, no other motion for reconsideration thereof shall be made without unanimous consent. ARTICLE V - CONDUCT OF PUBLIC HEARINGS SECTION 1. Matters to be Considered. The Committee shall hold public hearings as mandated by law. As to each public hearing, the chair shall state the matter before the Committee, and open the public hearing. Staff presents a report, and then the chair shall then recognize any members of the public wanting to speak with regard to the matter. SECTION 2. Time Limit to Address Committee. No person addressing the Committee shall speak more than three(3)minutes. All persons addressing the Committee shall be recognized by the chair and shall state their name and address prior to speaking. SECTION 3. Closing the Hearing. After all speakers have been heard, the chair shall declare the hearing closed. A closed hearing may be reopened only on motion and vote as hereinafter provided. After close of the hearing, members of the Committee may publicly discuss the matter before them and may ask questions of persons who have spoken before the Committee. Upon conclusion of the discussion, the chair shall ask for a motion declaring the decision of the Committee. The motion shall be made and seconded. Prior to a vote, the motion may be discussed by members of the Committee. ARTICLE VI — POWERS AND DUTIES OF THE COMMITTEE SECTION 1. As more fully described by Santa Ana Municipal Code section 33-184, the duties of ETAC shall consist of acting in an advisory capacity to the City Council, in the study, review, and recommendation with regard to the removal, planting, replanting or disposition of public trees along city streets in the public right of way. SECTION 2. As more fully described by Santa Ana Municipal Code section 33-184, the duties of ETAC shall also consist of acting in an advisory capacity to the Executive Director of the Public Works Agency, in the study, review, and recommendation with regard to transportation issues, streetscape issues, and general water and wastewater policies 12 20 16 XXX PWA 06b EA2 ETAC Bylaws.dou 50B-1 1 5 50B-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20 , 2016 TITLE: ORDINANCE RELATING TO THE CITY'S PROCEDURES CONCERNING IMMIGRATION STATUS AND THE ENFORCEMENT OF FEDERAL IMMIGRATION LAW FOLLOWING THE DECLARATION OF THE CITY OF SANTA ANA AS A SANCTUARY FOR ALL ITS RESIDENTS (STRATEGIC PLAN NO. 5,6F) CITY MANAGE RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1®t Reading ❑ Ordinance on 2"6 Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt an ordinance relating to the City's procedures concerning immigration status and the enforcement of federal immigration law following the declaration of the City of Santa Ana as a sanctuary for all its residents. DISCUSSION At the December 6, 2016 meeting, the City Council adopted Resolution No. 2016-086, declaring the City of Santa Ana a sanctuary for all its residents, regardless of their immigration status. Resolution No. 2016-086 outlined that the City would implement various policies called for by the resolution. These policies include the following: protecting sensitive information; reaffirming the City's commitment to preventing biased -based policing and disallowing the use of City resources for immigration enforcement; exercising appropriate discretion in policing; providing additional training for all affected City employees, officials, and agents; and establishing a task force for oversight. Based on City Council discussion regarding Resolution No. 2016-086, staff has prepared an ordinance for City Council consideration (Exhibit 1). The purpose of this ordinance is to establish the City's procedures concerning immigration status and enforcement of federal civil immigration laws. In 1996, the U.S. Congress passed two laws that prohibit state or local governments from restricting communication with the federal government regarding the immigration status of any individual: section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 50C-1 Ordinance Relating to the City's Procedures Concerning Immigration Status December 20, 2016 Page 2 1996, 8 U.S.C. § 1644, and § 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. § 1373. These laws were passed to authorize state and local law enforcement agencies to communicate with federal immigration authorities regarding the status and presence of unauthorized immigrants in their jurisdictions. While neither of these statutes mandates cooperation or sharing of information with federal immigration authorities, both do prohibit any restriction on information sharing between the federal government and state or local government entities or officials. Recently, these provisions have been used to both challenge and support state and local efforts to engage in federal civil immigration law enforcement. Proponents of state and local involvement in federal civil immigration law enforcement have argued that these provisions are an expression of Congress's intent to maximize cooperation among federal, state, and local law enforcement agencies in enforcing federal immigration laws. Conversely, proponents of less state and local involvement in federal civil immigration law enforcement, including the Obama administration, have argued that these provisions preempt certain state and local efforts to engage in immigration enforcement by drawing limits on the nature of non-federal engagement in immigration enforcement. While many state and local jurisdictions throughout the United States have adopted polices or practices that limit their own jurisdictions' federal civil immigration law enforcement efforts, the federal government has not made a formal legal determination as to whether those state and local laws or policies violate these provisions. And although there is no legal definition, these laws or policies are sometimes referred to as "sanctuary policies", while the jurisdictions themselves are sometimes referred to as "sanctuary cities" or "sanctuary jurisdictions". Through various forms of official communications from U.S. President-elect Donald J. Trump, he has expressed his opposition to "sanctuary policies" and "sanctuary cities". For example, in October 2016, President-elect Trump released his 100 -day action plan to Make America Great Again, which states that he will "cancel all federal funding to Sanctuary Cities". During his campaign, President-elect Trump's rhetoric has incited fear among many individuals throughout the United States, particularly among individuals who identify as being part of a marginalized, minority, and/or unprivileged group. In response to President -Elect Trump's plan, local officials in more than ten major cities, including San Francisco, Oakland, Los Angeles, New York, Chicago and Washington, D.C., reaffirmed their commitment to upholding their status as "sanctuary cities", even in the face of uncertainty from the federal government. Furthermore, many cities and towns throughout the United States have adopted or enacted resolutions, ordinances, policies, and practices to demonstrate their commitment to equal, respectful, and dignified treatment of all people, regardless of their immigration status, and as a result may be referred to as a "Sanctuary City", even though there is no legal definition for "Sanctuary City". By adopting Resolution No. 2016-086, the City of Santa Ana similarly demonstrated its commitment to its residents by unequivocally stating that it will provide a sanctuary to all residents who are fearful by assuring them that the City will not expend any funds, nor use its resources, including staff, to administer federal immigration law which is the 50C-2 Ordinance Relating to the City's Procedures Concerning Immigration Status December 20, 2016 Page 3 exclusive authority of the federal government. This resolution is indicative of the City's commitment to social justice. If this ordinance is adopted, the City would be required to implement various policies required by the ordinance. These policies include protecting sensitive information, prohibiting use of City resources for immigration enforcement, preventing biased -based policing, and directing law enforcement personnel to exercise discretion to cite and release individuals in lieu of detaining them at a local detention facility or county jail based on the nature of the alleged crime. The ordinance would also require the City to provide additional training, as well as to establish a task force, or similar body composed of community members, to advise the City Council on these and all policies related to this ordinance. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective 6 (focus projects and programs on improving the health and wellness of all residents.), Strategy F (incorporate health, wellness, and equity into all applicable policies and plans). FISCAL IMPACT There are no fiscal impacts associated with this item. Exhibit: 1. Ordinance 50C-3 50C-4 dmf 12.13-16 ORDINANCE NO. NS -XXX AN UNCODIFIED ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA RELATING TO THE CITY'S PROCEDURES CONCERNING IMMIGRATION STATUS AND THE ENFORCEMENT OF FEDERAL IMMIGRATION LAW FOLLOWING THE DECLARATION OF THE CITY OF SANTA ANA AS A SANCTUARY FOR ALL ITS RESIDENTS 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 of Santa Ana has long embraced and welcomed individuals of diverse racial, ethnic, religious, and national backgrounds, including a large immigrant population. B. The City of Santa Ana welcomes, honors, and respects the contributions of all of its residents, regardless of their immigration status. C. Immigrants and their families in Santa Ana contribute to the economic and social fabric of the City by establishing and patronizing businesses, participating in the arts and culture, and achieving significant educational accomplishments. D, Fostering a relationship of trust, respect, and open communication between City officials and residents is essential to the City's mission of delivering efficient public services in partnership with our community, which ensures public safety, a prosperous economic environment, opportunities for our youth, and a high quality of life for residents. E. The City of Santa Ana seeks to continue to foster trust between City officials and residents to protect limited local resources, to encourage cooperation between residents and City officials, including law enforcement officers and employees, and to ensure public safety and due process for all, F. In recognition of the City's continued commitment to the equal, respectful, and dignified treatment of all people, the City Council, on December 6, 2016, adopted Resolution No. 2016-086 declaring the City of Santa Ana a sanctuary for all its residents, regardless of their immigration status. This Resolution called for certain actions by the City relative to the administration and enforcement of federal immigration law, which is the exclusive authority of the federal government. Ordinance No. NS -XXX 50C-5 Page 1 of 5 Jmf 12-13.16 G. The City now wishes to enact specific procedures consistent with Resolution No. 2016-086 and the City's commitment to social justice and inclusion. SECTION 2. Purpose and Intent. The City of Santa Ana is one of the most ethnically, racially, and religiously diverse cities in the United States, with immigrants comprising approximately 46 percent of the City's population. The City has long derived its strength and prosperity from its diverse community, including those who identify as immigrants, and prides itself on their achievements. The cooperation of the City's immigrants is essential to advancing the City's mission, vision, and guiding principles, including community safety, support for youth and education, economic development, and financial stability. Through the City's commitment to social justice and inclusion, one of the City's most important objectives is to enhance its relationship with all its residents, including immigrants. Due to the City's limited resources, the complexity of federal civil immigration laws, the need to promote trust and cooperation from the public, including immigrants, and to attain the City's objectives, the City Council finds that there is a need to clarify the communication and enforcement relationship between the City and the federal government. The purpose of this ordinance is to establish the City's procedures concerning immigration status and enforcement of federal civil immigration laws. SECTION 3. Requesting or Maintaining Information Prohibited. No City agency, department, officer, employee, or agent shall request or maintain information about, or otherwise investigate or assist In the investigation of, the citizenship or immigration status of any person unless such inquiry is required by state or federal law or judicial decision. SECTION 4. Disclosing Information Prohibited. Except as otherwise provided under applicable federal law, no City agency, department, officer, employee, or agent shall disclose information regarding the citizenship or immigration status of any person. SECTION 5. Prohibitions Applicable to Sensitive Information. The prohibitions in Sections 3 and 4 of this ordinance shall also apply to any information that may be considered sensitive or personal by nature, including, but not limited to, the following: a person's status as a victim of domestic abuse or sexual assault; status as a witness to a crime; status as a recipient of public assistance; sexual orientation; or disability. SECTION 6. Exceptions to Prohibitions. The prohibitions in Sections 3 and 4 of this ordinance shall not apply where the individual to whom such information pertains provides his or her consent (or if such individual is a minor, the consent of that person's parent or guardian), where the information is necessaryto provide a City service, or where otherwise required by law. SECTION 7. Use of City Resources Prohibited. No City agency, department, officer, employee, or agent shall use City funds, resources, facilities, property, equipment, or personnel to assist in the enforcement of federal civil immigration Ordinance No. NS -XXX Page 2 of 5 50C-6 Jmf 12-13-16 law or to gather or disseminate information regarding the citizenship or immigration status of any person, unless such assistance is required by federal or state law or is contractually obligated. Nothing in this Section shall prevent the City, including any agency, department, officer, employee, or agent of the City, from lawfully discharging his or her duties in compliance with and in response to a lawfully issued judicial warrant or subpoena. The prohibition set forth in this Section shall include but not be limited to: (a) identifying, investigating, arresting, detaining, or continuing to detain a person solely on the belief that the person is not present legally in the United States or that the person has committed a civil immigration violation; (b) arresting, detaining, or continuing to detain a person based on any immigration detainer or federal administrative warrant, when such immigration detainer or administrative warrant is based solely on a violation of federal civil immigration law, or otherwise honoring any such detainer, warrant, or request to detain, interview, or transfer; (c) notifying federal authorities about the release or pending release of any person for immigration purposes; (d) providing federal authorities with non-public information about any person for immigration purposes; and (e) enforcing any federal program requiring the registration of individuals on the basis of religious affiliation or ethnic or national origin. (f) This Section shall not apply when an investigation conducted by any City agency, department, officer, employee, or agent indicates that the subject of the investigation: 1. has an outstanding criminal warrant; 2. has been convicted of a felony in any court of competent jurisdiction; or 3. is a defendant in any court of competent jurisdiction where a judgment has not been entered and a felony charge is pending. SECTION 8. Implementation of Policies. Within a reasonable time following adoption of this ordinance, the City shall implement policies to prevent biased - based policing and directing its law enforcement personnel to exercise discretion to cite and release individuals in lieu of detaining them at a local detention facility or county jail based on the nature of the crime alleged to be committed. The City shall also provide appropriate training and establish a commission, task force, or similar body composed of Ordinance No. NS -XXX 50C-7 Page 3 of 5 Jmf 12-13-16 community members to advise the City Council on these and all policies related to this ordinance. SECTION 9. Ordinance Not to Conflict with Federal Law. Nothing in this ordinance shall be construed or implemented to conflict with any valid and enforceable duty and obligation imposed by a court order or any federal or applicable law. SECTION 10. No Private Right of Action. This ordinance does not create or form the basis of liability on the part of the City, its agencies, departments, officers, employees, or agents. It is not intended to create any new rights for breach of which the City is liable for money or any other damages to any person who claims that such breach proximately caused injury. The exclusive remedy for violation of this ordinance shall be through the City's disciplinary procedures for employees under applicable City regulations, unless the agency, department, officer, employee, or agent of the City is lawfully discharging his or her duties as set forth in Section 7. SECTION 11. Severability. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection; sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions were to be declared invalid or unconstitutional. SECTION 12. Effective Date. This ordinance shall become effective thirty (30) days after its adoption. SECTION 13. Certification by Clerk. The Clerk of the Council shall certify the adaption of this ordinance and shall cause the same to be published as required by law. ADOPTED this day of _ 2017 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: John M. Funk Assistant City Attorney Ordinance No. NS -XXX Page 4 of 5 Miguel A. Pulido Mayor 50C-8 Jmf 12.13.16 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS -XXX 50C-9 Page 5 of 5 50C-10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE AGREEMENT BETWEEN POLICE OFFICER MCCARTHY AND THE CITY OF SANTA ANA RELATING TO THE PURCHASE OF A POLICE K-9 {STRATEGIC PLAN GOAL NO. 1, 3A} CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO 131�►I�1��iF-T�:7 1. Adopt a resolution authorizing the purchase agreement between Santa Ana Police Officer McCarthy and the City of Santa Ana for the purchase of a retired Police K-9. 2. Authorize the City Manager and Clerk of the Council to execute the attached purchase agreement with Santa Ana Police Officer McCarthy for the purchase of his retired Police K-9 in the amount of $1, subject to non -substantive changes approved by the City Attorney and City Manager. DISCUSSION On November 13, 2016, Officer Mike McCarthy was transferred from the K-9 Unit to Patrol. His assigned canine Max is 10 years old, normal retirement age for police service dogs. At his age, it would be impractical to reassign Max to a new canine handler to attend the Basic Handlers Course before being put back in service. During their assignment as a K-9 team, Max has lived with Officer McCarthy for over 6 years. As Max retires, Officer McCarthy wishes to purchase Max for the standard fee of $1. Officer McCarthy will assume ownership and full responsibility for the care, maintenance, food, housing, medical and any other expenses that arise out of Officer McCarty's ownership of Max. It is recommended that the agreement between Officer McCarthy and the City of Santa Ana be approved. 55A-1 Resolution and Agreement for Police Department K-9 December 20, 2016 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #1 Community Safety - Objective #3 (Promote fiscal accountability to ensure financial responsibility at all levels of the organization), Strategy A (Continuously evaluate and assess fiscal aspect of service delivery to ensure that the Police Department provides programs and services efficiently and effectively). FISCAL IMPACT Funds for this agreement will be deposited into the Police Department's FY 2016-17 miscellaneous reimbursement revenue account (no. 01114002 57402 ). Carlos Rojas Chief of Police Santa Ana Police Department Exhibits: 1. Resolution 2. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency 55A-2 T8 12.20.16 RESOLUTION NO.2016- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE AGREEMENT BETWEEN POLICE OFFICER MCCARTHY AND THE CITY OF SANTA ANA RELATING TO THE PURCHASE OF A POLICE K-9 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. WHEREAS, Officer Mike McCarthy ("Officer") is a police officer with the City of Santa Ana and is assigned to the Canine Unit as a K-9 officer; and B. WHEREAS, the City assigned a dog named Max to be used in the K-9 program and assigned to Officer; and C. WHEREAS, Max has served the department for several years as a police service dog; and E. WHEREAS, Max is 10 years old, a normal retirement age for police service dogs; and F. WHEREAS, Officer has requested permission to purchase Max; and G. WHEREAS, the City is agreeable to selling Max to Officer due to their relationship. Section 2. The City has declared Max to be surplus property and due to the nature of officer's relationship with Max, the City Council authorizes the City Manager to enter into an Agreement with officer on behalf of the City to sell Max for $1 under terms and conditions acceptable to the City Attorney. Section 3. If any surcharge or fee, section, subsection, sentence, clause, phrase or word of this Resolution is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have passed and adopted this Resolution, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid. Resolution No. 2016 -XXX Page 1 of 2 Exhibit : 0 55A-3 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 December, 2016. Miguel A. Pulido Mayor APPROVED AS TO FORM: So ' R. Carvalho, City Attorney T mara Bogosian Assistant City Attorney AYES: Councilmembers NOES ABSTAIN: NOT PRESENT Councilmembers Councilmembers 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- to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 2016 -XXX Page 2 of 2 55A-4 PURCHASE AGREEMENT THIS PURCHASE AGREEMENT, made and entered into this _ day of December, 2016 by and between the City of Santa Ana (hereinafter "City") and Officer Michael McCarthy ("Officer"), RECITALS A. Officer is a member of the Santa Ana Police Department and was assigned to the K9 Unit as a K9 Handler. B. Officer was, in conjunction with his assignment as a K9 Handler, given the care, custody, and control of a police dog named "Max" (Dog). C. Dog has been specially trained to assist officers in law enforcement tasks to respond to commands issued specifically by the Officer. D. Dog is 10 years old, a normal retirement age for police service dogs. Based upon his age and current physical condition, it would be impractical to reassign Dog to a new canine handler to attend Basic handlers Course before being put back in service. E. Dog is considered "surplus" property and the Director of Finance has agreed to sell Dog to Officer for the sum of $1.00. F. Officer wishes to adopt and purchase Dog. It is the City's intent to sell Dog to Officer subject to the conditions specified in this agreement. 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. City hereby sells Dog to Officer for the sum of $1.00, payable at the time this contract is executed. Officer shall be the owner of the Dog upon execution of this contract and payment of $1.00. 2. Officer agrees and hereby assumes ownership and fall responsibility for the care, maintenance, food, housing, medical and any and all other expenses that result from or arise out of Officer's ownership of Dog. 3. Officer agrees that the City shall have no further responsibility of liability for Dog or Dog's care after the date of this agreement. 4. Officer agrees to defend, indemnify and hold harmless the City and its officers, employees, representatives, and agents with respect to any loss, damage, claim, injury, or liability that arises out of, or is in any way related to, Dog m Officer's actions with Dog after the effective date of this agreement. Exhibit I 55A-5 5. Officer gives rip and waives any right he may have on behalf of himself and his heirs, assigns, and successors for any loss, injury, damage, claim, or liability arising out of or in any way related to Officer's ownership and possession of Dog. 6. This agreements contains the entire agreements between the parties and no representations have been made by any of the parties or their representative, except as is contained herein and any representations not expressed herein are invalid and unenforceable. This agreement is valid on the effective date and may not be modified thereafter, except in writing signed by the parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written, MICHAEL McCARTHY Police Officer ATTEST: MARIA HUIZAR Clerk of the Council APPROVE D AS TO FORM: SONIA R. CART/ City Attorney Assistant City Attorney y CITY OF SANTA ANA CARLOSROJAS Chief of Police Wfolugawo • Moll 10 Lei I 11111F.A141111 CITY COUNCIL MEETING DATE: 20, 2016 TITLE; A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ACCEPTING A DONATION OF EQUIPMENT FOR THE SANTA ANA POLICE ATHLETIC & ACTIVITY LEAGUE PROGRAM FROM THE LA GALAXY FOUNDATION AND SOUTHERN NEW HAMPSHIRE UNIVERSITY {STRATEGIC PLAN NO. 1, 1C} CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution accepting the donation of miscellaneous photography, academic, and fitness - related equipment from the Los Angeles Galaxy Foundation and Southern New Hampshire University (SNHU) for programming use at the Santa Ana Police Athletic & Activity League (SAPAAL) Center. DISCUSSION The Santa Ana Police Athletic & Activity League (SAPAAL) has been in collaborative partnership with the Los Angeles Galaxy soccer team and the non-profit Los Angeles Galaxy Foundation since January 2010. The Los Angeles Galaxy has been committed to assisting the SAPAAL with motivating and rewarding students who complete their homework and who participate in afterschool activities by inviting them to attend regular season and playoff soccer matches. The Los Angeles Galaxy has also assisted the SAPAAL in the promotion of physical fitness by offering a soccer development camp to SAPAAL kids every summer at the StubHub Center in Carson, CA. Through Major League Soccer's 20 -for -20 Mini -Pitch Initiative, the Los Angeles Galaxy, along with education partner Southern New Hampshire University (SNHU), installed the team's first and only Orange County Mini -Pitch soccer facility at Jackson Elementary School. Since March 2016, the Los Angeles Galaxy has committed to offering soccer clinics during the school year to Santa Ana students at the Mini -Pitch. 55B-1 Resolution Accepting Fitness Equipment from Los Angeles Galaxy and SNHU December 20, 2016 Page 2 After learning that an off-site photography class offered to SAPAAL students at Bowers Kidseum was discontinued in May 2015, the Los Angeles Galaxy and SNHU offered to assist the SAPAAL by launching a photography program, and by contributing to the existing education and fitness - based programming offered at the SAPAAL. The Los Angeles Galaxy and SNHU have purchased about $19,600 worth of education, fitness, and photography equipment, including 20 digital SLR cameras, 20 Photoshop Elements software licenses, 10 Amazon Fire HD8 tablets, one photography -specific color printer, one high yield color printer, 200 writing composition books, four Concept 2 rowing machines, and other miscellaneous tablet and printer supplies. The donation of these items will positively impact the lives of the students at the SAPAAL Afterschool Program. The Santa Ana Police Department appreciates the partnership that exists between the SAPAAL, the Los Angeles Galaxy and SNHU, and recommends approval of the resolution. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #1 - Community Safety - Objective #1 (Modernize the Community Policing philosophy to improve customer service, crime prevention and traffic/pedestrian/bicycle safety), Strategy C (Deliver crime prevention/community policing programs based on the community policing plan). FISCAL IMPACT There is no fiscal impact associated with this action Carlos Rojas Chief of Police Santa Ana Police Department Exhibit: 1. Resolution 55B-2 TB 12.20.16 RESOLUTION NO.2016- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ACCEPTING THE DONATION OF EQUIPMENT FOR THE SANTA ANA POLICE ATHLETIC & ACTIVITY LEAGUE PROGRAM FROM THE LA GALAXY FOUNDATION AND SOUTHERN NEW HAMPSHIRE UNIVERSITY 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. WHEREAS, the Santa Ana Police Athletic & Activity League (SAPAAL) has been in collaborative partnership with the Los Angeles Galaxy soccer team and the non-profit Los Angeles Galaxy Foundation since January 2010, B. WHEREAS, the Los Angeles Galaxy and Southern New Hampshire University (SNHU) offered to assist SAPAAL in launching a photography program and to contribute to the existing education and fitness -based programming offered at SAAPAL. C. WHEREAS, the photography, education, and fitness equipment worth $19,600 purchased by the Los Angeles Galaxy and SNHU that will be donated consists of twenty (20) digital SLR cameras, twenty (20) Photoshop Elements software licenses, ten (10) Amazon Fire HD8 tablets, one (1) photograph -specific color printer, one (1) high yield color printer, two -hundred (200) writing composition books, four (4) Concept 2 rowing machines, and other miscellaneous tablet and printer supplies. E. WHEREAS, the City Council of the City of Santa Ana believes that accepting such a donation will positively impact the lives of the students that participate in the SAPAAL Afterschool Program. SECTION 2. The City Council hereby accepts the Los Angeles Galaxy and SNHU donation of $19,600 worth of photography equipment, software and supplies as outlined above. Section 3. If any surcharge or fee, section, subsection, sentence, clause, phrase or word of this Resolution is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have passed Resolution No. 2016 -XXX Page 1 of 2 55B-3 and adopted this Resolution, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid. Section 4. This Resolution shall take effect 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 s day of December, 2016. APPROVED AS TO FORM: Son" Carvalho, ity Attorney By: Ta vara Bogosian Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: NOT PRESENT: Councilmembers Councilmembers Miguel A. Pulido Mayor CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Resolution No, -2016 - Council of the City of Santa Ana on Date: Council, do hereby attest to and certify the attached to be the original resolution adopted by the City Clerk of the Council City of Santa Ana 55B-4 Resolution No. 2016 -XXX Page 2 of 2 REQUEST FOR us� COUNCIL ACTIO CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: APPROVE THE ANNUAL CALENDAR OF REGULAR CITY COUNCIL MEETINGS FOR 2017 {STRATEGIC PLAN NO. 5, 11 CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 15� Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE V f NUMBER CITY MANAGER RECOMMENDED ACTION 1. Review calendar of regularly scheduled City Council Meetings in 2017. 2. Cancel the regularly scheduled City Council meeting of January 3, 2017 and any other deemed necessary. 3. Approve the 2017 calendar of regularly scheduled City Council meetings. 4. Direct staff to post Notice of Cancellation(s). The City Council hereby waives notice of said meetings as required by the government code. DISCUSSION Consistent with past practice, the City Council has cancelled the first meeting of the year and a meeting during the summer months. The City Council may consider cancelling either the second meeting in July or August (July 18 and August 15 respectively), in addition to any others as directed and approved by council majority. If the City Council cancels any regularly scheduled meeting, they will resume consideration of agenda items at their next regular scheduled meeting. The City Council reserves the right to cancel any other meetings and notify the public as legally required. The 2017 Master Calendar and agendas for all regular and special meetings will be posted on the City's website at: http://www.santa-ana.org/coc/granicus.asp. City Council Meetings are typically held in the Council Chamber, 22 Civic Center Plaza, Santa Ana and Council Committee meetings at City Hall, Ross Annex, Room 1600, Santa Ana or as otherwise noted on the agenda. 65A-1 2017 Regularly Scheduled Meetings December 20, 2016 Page 2 STRATEGIC PLAN Approval of this agreement allows us 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 item. Marla D. Huizar, Clerk of the Council Exhibit: 1. City Council Meeting Calendar 2017 Santa Ana City Council Meetings Schedule 2017 January S October T W S 1 8 1 2 3 4 5 6 7 8 15 9 16 10 11 17 18 12 19 j 14 20 21 22 29 23 30 24 25 31 26 28 31 14 15 16 17 l HOLIDAY - CITY HALL CLOSED CITY HALL CLOSED -9/80 WORK SCHEDULE _ CITY COUNCIL MEETING May S October T W S 1 8 E��ufiO�Ji��iE� ©©0©00© T 5 12 F S 7 13 14 15 22 16 231 18 24 251 19 26 21 271 28 29 30 31 10 11 30 31 14 15 16 17 18:,,"1$ 16 20 21 22 23 24 25 26 27 8 29 30 31 29 30 l HOLIDAY - CITY HALL CLOSED CITY HALL CLOSED -9/80 WORK SCHEDULE _ CITY COUNCIL MEETING May S October T W S 1 8 E��ufiO�Ji��iE� T W 4 10 11 T 5 12 F S 7 13 14 15 22 16 231 18 24 251 19 26 21 271 28 29 30 31 10 11 30 31 14 15 16 17 18:,,"1$ 16 20 21 22 23 24 25 26 27 8 29 30 31 29 30 l HOLIDAY - CITY HALL CLOSED CITY HALL CLOSED -9/80 WORK SCHEDULE _ CITY COUNCIL MEETING May S October T W S 1 8 M 2 9 T W 4 10 11 T 5 12 F S 7 13 14 15 22 16 231 18 24 251 19 26 21 271 28 29 30 31 10 11 30 31 14 15 16 l HOLIDAY - CITY HALL CLOSED CITY HALL CLOSED -9/80 WORK SCHEDULE _ CITY COUNCIL MEETING May S M T W T F S 1 2 1 2 3 4 5 6 7 8 9 10 11 I2 13 14 15 16 17 18:,,"1$ 16 20 21 22 23 24 25 26 27 8 29 30 31 29 30 August o©v©oo© M T W T T FI 3 1 2 3 4 5 6 13 7 14 8 9 15 16 10 I7 12 I8 19 20 21 22 23 24 26 27 28 29 30 31 I4 September o©v©oo© T T T W T FI 3 4' 6 7 9 10 11 12 13 14 15 16 2 3 Z126June 5 6 6 7 8 9 10 14 15 13 I4 September December T T T W T FI 3 4' 6 7 9 10 11 12 13 14 15 16 2 3 Z126June 5 6 6 7 8 9 10 14 15 13 I4 15 16 17 23 24 25 20 21 22 23 24 27 28 29 30 September December T T I 2 3 4' 6 7 9 10 11 12 13 14 15 16 17 24 18 20 21 25 26 27 28 29 23 30 Meetings listed on calendar are REGULAR meetings. Special Mooing, may be scheduled 24 -Fours in advance las permitted by the Brown A.U. For a copy of Agenda and meeting location, please refer to City's website oh http://www.sontabna.orq/coc/gmnicus.asp MEETINGS FOR 2017 Tuesday, January 3 Tuesday, January 17 Tuesday, February 7 Tuesday, February 21 Tuesday, March 7 Tuesday, March 21 Tuesday, April 4 Tuesday, April 18 Tuesday, May 2 Tuesday, May 16 Tuesday, June 6 Tuesday, June 20 Wednesday, July 5 (Tuesday is a holiday) Tuesday, July 18 Tuesday, August 1 Tuesday, August 15 Tuesday, September 5 Tuesday, September 19 Tuesday, October 3 Tuesday, October 17 Tuesday, November 7 Tuesday, November 21 Tuesday, December 5 Tuesday, December 19 65A-3 December S M T W T F S 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19F 20 21 22 23 24 25 26 27 28 29 30 31 Meetings listed on calendar are REGULAR meetings. Special Mooing, may be scheduled 24 -Fours in advance las permitted by the Brown A.U. For a copy of Agenda and meeting location, please refer to City's website oh http://www.sontabna.orq/coc/gmnicus.asp MEETINGS FOR 2017 Tuesday, January 3 Tuesday, January 17 Tuesday, February 7 Tuesday, February 21 Tuesday, March 7 Tuesday, March 21 Tuesday, April 4 Tuesday, April 18 Tuesday, May 2 Tuesday, May 16 Tuesday, June 6 Tuesday, June 20 Wednesday, July 5 (Tuesday is a holiday) Tuesday, July 18 Tuesday, August 1 Tuesday, August 15 Tuesday, September 5 Tuesday, September 19 Tuesday, October 3 Tuesday, October 17 Tuesday, November 7 Tuesday, November 21 Tuesday, December 5 Tuesday, December 19 65A-3 65A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: 20, 2016 TITLE: ANNUAL REVIEW AND APPOINTMENT OF REGIONAL BOARD REPRESENTATIVES (STRATEGIC PLAN NO. 5, 1) Y MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: -r+ P ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on tad Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Review the regional board appointment list and appoint members and alternates to serve as representatives to various outside agencies through December 2017 (or specific term where noted); and, 2. Adopt a resolution designating and appointing a representative to the Orange County Fire Authority's Board of Directors; and, 3. Direct the Clerk of the Council to update and post the Fair Political Practices Commission (FPPC) Form 806 (Agency Report of Public Official Appointments) on the City's website. DISCUSSION The Mayor and City Council represent the City's interest in regional issues by serving on a number of regional boards which make public policy decisions in the areas of transportation, water resources, fire services, and government facilities. The City Council reviews regional board appointees on an annual basis and can make necessary changes. Attached is a list of current representatives, meeting dates, compensation and other pertinent information on each board (Exhibit 1). For discussion purposes, the following is a list of regional boards and appointing authority. ■ Metropolitan Water District The Metropolitan Water District of Southern California is a regional wholesaler that delivers water to 26 member public agencies — 14 cities, 11 municipal water districts, one county water authority — which in turn provides water to more than 19 million people in Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties. Metropolitan is governed by a 38 -member board of directors who represent 6513-1 Annual Review and Appointment of Regional Board Representatives December 20, 2016 Page,, ,)f '3 their respective member agencies ensuring each member agency is part of the governance of Metropolitan. A board member is appointed by the majority of the City Council (member does not have to be elected official). ■ Newport Bay Watershed Executive Committee The Newport Bay Watershed Executive Committee (Executive Committee is the successor to the Upper Newport Bay Sediment Control Executive Committee established through a cooperative agreement in the early 1980s. The Executive Committee was formed by amendment of the cooperative agreement in 1999, and now includes in its interests the impairments of Newport Bay caused by nutrients, toxics, and pathogens in addition to sediment, as well as related environmental enhancements. Members of the Executive Committee are elected, appointed, or executive level managers, with one member from each of the signatories to the agreement (the County member, however, represents both the County and the Orange County Flood Control District). The Executive Committee provides strategic direction for environmental enhancement programs in the watershed, advocacy of these programs to the elected/appointed boards of the member organizations, and a forum for discussion of watershed environmental issues. A board member and alternate is appointed by the majority of the City Council. ■ Orange County Sanitation District (OCSD) Board The Orange County Sanitation District is a wastewater treatment facility that serves Orange County, California. It consists of two operating plants, referred to as Plant No. 1 located in Fountain Valley and Plant No. 2 located in Huntington Beach. It is the third largest wastewater treatment facility west of the Mississippi River. OCSD and the Orange County Water District were awarded the Stockholm Industry Water Award in 2008 for pioneering work to develop with Trojan Technologies the Groundwater Replenishment System, the world's largest water purification plant for groundwater recharge. A board member and alternate are appointed by the majority of the City Council. ■ Orange County Fire Authority (OCFA) The Orange County Fire Authority Board of Directors has twenty-five members and sets policy according to its adopted Rules of Procedures. Twenty-three of the members represent partner cities, and two members represent the county unincorporated area. A board member is appointed by the majority of the City Council. Selection must be authorized by resolution. ■ Transportation System Improvement Authorities - Orange & Tustin (TSIA) Formed in 1990, City of Santa Ana approved a joint authority with the Cities of Orange and Tustin to improve areas of mutual interests. 65B-2 Annual Review and Appointment of Regional Board Representatives December 20, 2016 Page$ of 3 A board member and alternate are appointed by the majority of the City Council for each of the two (2) Authorities. ■ Southern California Association of Governments (SCAG) District #16 An association representing six (6) counties (Imperial, Los Angeles, Orange, Riverside, San Bernardino and Ventura) that works to develop regional plans for transportation, growth management, housing development, air quality and other issues of regional significance. A board member and alternate is appointed by the majority of the City Council. ■ Transportation Corridor Agencies (TCA) — Foothill/Eastern Joint Powers Authority formed in 1986 to design, finance, construct and operate the three Orange County toll roads. The Agency is in the process of merging all toll roads under the direction of one board. A board member and alternate are appointed by the majority of the City Council. ■ Orange County Vector Control: The Orange County Vector Control Board is an independent special district dedicated to controlling rats, mosquitoes, and other disease carrying and public health pests. Activities also include surveillance of vectors and vector-borne diseases, public education services and identification of public health pests. Each Trustee is appointed by the city they represent to serve a two or four year term. A board member and alternate is appointed by the majority of the City Council. 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. ate - Maria D. Huizar Clerk of the Council Exhibits: 1. Resolution for OCFA Appointment & List of Current Regional Board Members L■ Lt m I RESOLUTION NO. 2016-xxxx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA, REPEALING RESOLUTION NO. 2016-058 AND DESIGNATING AND APPOINTING ITS REPRESENTATIVE TO THE ORANGE COUNTY FIRE AUTHORITY'S BOARD OF DIRECTORS WHEREAS, the City, as a "member" of the Orange County Fire Authority Joint Powers Authority (JPA) is entitled to appoint a representative director ("Director") to the Orange County Fire Authority's Board of Directors; and, WHEREAS, each member agency, by resolution of its governing body, shall designate and appoint one representative to act as its Director on the Authority Board of Directors, except the County whose Board of Supervisors shall appoint a representative to act as its Directors; and, WHEREAS, the Director shall be a current elected member of the governing body; and, WHEREAS, the Director shall hold office until the selection of a successor by the appointing body; and, WHEREAS, the Director is to serve at the pleasure of his or her appointing body and may be removed at any time, with or without cause, at the sole discretion of that appointing body; and, WHEREAS, any vacancy shall be filled in the same manner as the original appointment of a Director. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Santa Ana, California, does hereby: 1. Repeal Resolution no. 2016-058 in its entirety and 2. Designate and appoint member as a Director to the Orange County Fire Authority Board of Directors. Resolution No. 2016-xxx 65B-5 Page 1 of 2 PASSED, APPROVED, AND ADOPTED this day of 2016. Miguel A. Pulido, Mayor APPROVED AS TO FORM: 0 Sonia R. Carvalho, 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-XXXX to be the original resolution adopted by the City Council of the City of Santa Ana on December 20, 2016, Date: Resolution No. 2016-xxx Page 2 of 2 Clerk of the Council, City of Santa Ana CITY OF SANTA ANA 2016 REGIONAL BOARD MEMBERS 65B-7 Board Mtgs 2nd Tues of mo. @ Mileage Metropolitan Water Michele 12:30 with Cmte mtgs at 8 a.m. reimbursement from District Board (MWD) Martinez Rep. and also Cmte Mtgs 4th Tues all MWD da Michele Quarterly the 3rd Wednesday None Newport Bay Watershed Martinez from 1:30-3:00 at Irvine Ranch Executive Committee (resigned Rep. Water District, 15600 Sand effective December 20, Canyon Avenue, Irvine, CA 2016) 92618 OC Sanitation District * Sal Rep. Meets once a month on the 4th $212.50/Mtg. Max Tina'eroWednesday at 6 p.m. 6/Mo. Plus mileage OC Sanitation District * David Alt. Meets once a month on the 4th $212.50/Mtg. Max Benavides Wednesday at 6 p.m. 6/Mo. Plus mileage OC Vector Control Meets on 3rd Thursday at 3 pm. $100/Mtg. District Rep. 2 year appointment Orange County Council Michele Meets once a month on the 4th None of Governments Board of Martinez Rep. Thursday at 11 a.m. Directors OCCOG * Orange County Council 3r6 Thursday of the month from of Governments Board of Alt. 10:30 a.m. to 12:00 p.m. at the Directors (OCCOG) * OCTA Headquarters in Conference Room Orange County Fire Vicente Rep. Every Month at 6:30 p.m. $100 per meeting; Authority (OFCA) * Sarmiento max $300 1st & 3rd Wednesday at 5:30 $221.12/ Day Max Orange County Water Vicente Rep.* p.m., 18700 Ward St., Fountain 10 mtgs./Mo. Plus District Sarmiento *Appointed Valley, CA — Committees meet at mileage $0.50 12/6/2016 various times and dates S.A./Orange T.S.I.A. Vicente Rep. As needed. None Sarmiento S.A./Orange T.S.I.A. Alt. As needed. None S.A./Tustin T.S.I.A. Vicente Rep. Meets quarterly, 4th Thurs. at 4 None Sarmiento .m. S.A./Tustin T.S.[.A. Alt. Meets quarterly, 4th Thurs. at 4 None p. M. Southern California Michele District 16 - Meets 1st Thursday $120/Mtg. Max6/Mo. Association of Martinez Rep. of each month, 10 a.m. — 1:30 Plus mileage from City Governments SCAG p m Hall Michele $120/Mtg. Max6/Mo.; Martinez Ad Hoc Cmts $120 Transportation Corridor (resignedMeets Rep. on the 2nd Thursday at plus Mileage Agencies (TCA) * effective 9:30 am December 20, 2016 Transportation Corridor Alt. Meets on the 2nd Thursday at Agencies (TCA) * 9:30 am 65B-7 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: APPROVE THE BUDGET CALENDAR FOR FISCAL YEAR 2017-18 {STRATEGIC PLAN NO. 4, 1} CITY MAN "ER RECOMMENDED ACTION Approve the Budget Calendar for fiscal year 2017-2018. DISCUSSION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1®t Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Under the direction and leadership of the City Manager's Office along with the principles of Budgeting Best Practice, a Budget Calendar (Calendar) has been created by the Finance & Management Services Agency -Budget (Budget Division). The creation of the Calendar is an informative tool which allows for a successful and transparent City budget process. The current Calendar for consideration, informing both internal and external stakeholders, for fiscal year 2017-18 is the third consecutive year in which a Calendar has been developed by the Budget Division. As a result, the creation of the Calendar highlights the following budget plan: • Preparation of the Trial Budget presentation; • Five Community Budget meetings with over 290 attendees (fiscal year 2016-17 budget) • Proposed Budget for all City Funds including the General Fund • Discussion with Elected Officials regarding the Trial Budget • Capital Improvement Program and presentation. In addition, development of the Calendar also promotes public awareness, transparency, and community engagement in the development of the fiscal year 2017-2018 Budget and Capital Improvement Plan. The Calendar highlights key dates such as the Community Budget Outreach and Strategic Plan Updates (per the Sunshine Ordinance), Community Budget and Capital Improvement Program Meetings, and a Budget Work Study Session. The Calendar commences December 20, 2016 and ends with the adoption of the fiscal year 2017-2018 Budget tentatively scheduled for June 20, 2017. 65C-1 Approve the Budget Calendar for Fiscal Year 2017-18 December 20, 2016 Page 2 STRATEGIC PLAN ALGINMENT Approval of this item allows the City to meet Goal #4 - City Financial Stability, Objective #1, (maintain a stable, efficient and transparent financial environment). FISCAL IMPACT There is no fiscal impact associated with this action. I��� R� Francisco Gutierrez Executive Director Finance and Management Services Agency EXHIBIT: 1. FY 2017-2018 Budget Calendar 65C-2 D City of Santa Ana FY 2017-18 Budget Calendar December 6, 2016 Present Preliminary Calendar & Process to City Council for Approval January 2017 Commence negotiations with bargaining units February 2017 Special City Council Meeting to discuss budget priorities /options May 2, 2017 . Preliminary FY 16-17 Budget Status • General Fund One -Year Forecast (FY 17-18) and Four Year Projections • Present City Manager's General Fund Trial Budget • Prelim. Capital Improvement Program (CIP — includes Water & Sewer) to City Council May/June 2017 Community Budget Meetings Includes Strategic Plan Update May 16, 2017 City Manager's Proposed FY 17-18 Budget Work -Study Session Includes CIP, Miscellaneous Fees, and Personnel Resolution June 6, 2017 Tentative Budget/CIP Ordinance Adoption Adopt Miscellaneous Fees, and Personnel Resolution June 19, 2017 City Council one-on-one meetings — Review of Trial Budget and CIP June 20, 2017 Final Budget/CIP Ordinance Adoption July 1, 2017 Start of the New Fiscal Year EXHIBIT 1 65C-3 65C-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: COMMUNITY ENHANCEMENT PROGRAM GRANT AGREEMENTS AND APPROPRIATION ADJUSTMENT FOR FISCAL YEAR 2016-2017 {STRATEGIC PLAN NOS. 2,2A; 2,2B; 5,4B; 5,5C; 5,6C } CITY MANAGEFO RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ® As Recommended 0 As Amended F1 Ordinance on 1" Reading d Ordinance on 2nd Reading Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Approve one of the funding options for the 2016-2017 Community Enhancement Program Grant in the amount of $500,000: OPTIONS: A. Award funds to the eight highest ranked nonprofit programs for the requested funding amount, for a total of $485,643, and allocate $14,357 for administrative costs (Staff recommended action); or B. Award funds to the nine highest ranked nonprofit programs, with a of 7.5% reduction of the requested funding amount, for a total of $500,000. 2. Direct the City Attorney to prepare and authorize the City Manager and Clerk of the Council to execute agreements with nonprofit agencies awarded Community Enhancement Program Grants, subject to non -substantive changes approved by the City Manager and City Attorney. 3. Approve and Appropriation Adjustment to appropriate $500,000 from Fund Balance, resulting from Fiscal Year 2015-16 (General Fund) for the City's Community Enhancement Grant Program. DISCUSSION The Community Enhancement Program Grant (CEPG) will allocate funding to nonprofit organizations for public services that support health, human and/or quality of life services to Santa Ana residents. On September 20, 2016 the City Council participated in a work study session for CEPG and directed staff to move forward with the application process. 65D-1 Community Enhancement Program Grants December 20, 2016 Page 2 Applications for CEPG were released on October 14, 2016. Nonprofits with a 501(c)3 status were eligible to apply, a funding cap was set at $125,000 per program, and programs were required to align with a City of Santa Ana Strategic Plan Goal. A total of 67 applications were received by the November 7, 2016 application due date. Based on an internal staff review, 56 applications were deemed responsive and were rated by a panel consisting of representatives from the Rancho Santiago Community College District, Santa Ana Unified School District, Community Redevelopment and Housing Commission, Arts and Culture Commission, and the City of Santa Planning Agency Neighborhood Initiatives Division. The rating results are listed in the CEPG Rankings and Recommendations (Exhibit 1). Nonprofit program summaries are provided in Exhibit 2. Marketing efforts to promote the availability of funds included a Nixle Press Release reaching 14,146 emails, a mailing to 320 Santa Ana nonprofit organizations, and an email to 154 nonprofit organization representatives. Additionally a dedicated website was setup to provide CEPG information and the online application submission system. During the application process Staff conducted two grant workshops to provide grant information and answer questions from interested nonprofits. A total of 90 representatives from 75 nonprofits attended the workshops. Option A: Award funds to the eight (8) highest ranked nonprofit programs. This option allows nonprofit organizations to receive the full funding requested in the grant application. It also provides $14,357 for City costs associated with administering the grant program. If this option is selected, nonprofits will be required to adhere to the service levels stated in the application. Option B: Award funds to the nine (9) highest ranked nonprofit programs. This option reduces funding by 7.5% of the funding requested in the grant application. It does not provide funding for the City to administer the grant program. If this option is selected, service levels in the application may be reasonably adjusted at the sole discretion of the City, proportionate to the level of funding awarded. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #2 — Youth, Education, Recreation, Objective #2 (Expand youth programming), Strategy A (Focus resources on quality youth engagement, enrichment and education programs through community centers, libraries and after- school programs during out-of-school hours.), Strategy B (Expand the youth sports program so that youth recreational opportunities are established year-round.), and Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (Support neighborhood vitality and livability), Strategy B (Implement new Neighborhood Improvement Initiatives focusing on residential areas that have been adversely affected by disinvestment and decline, Objective #5 (Promote a strong arts and culture infrastructure) Strategy C (Generate public and private support and resources to strengthen, expand and stabilize funding for the arts.), Objective #6 (Focus projects and programs on improving the health and wellness of all residents) Strategy C (Integrate a variety of health and wellness programs into existing programming at each of the city's community/recreation centers). 65D-2 Community Enhancement Program Grants December 20, 2016 Page 3 FISCAL IMPACT Approval of the Appropriation Adjustment will designate $500,000 from Fiscal Year 2015-16 General Fund ending fund balance to the following account: Fundinq Source General Fund Non -Departmental General Fund Non -Departmental Robert C. Corte Deputy City Manager City Manager's Office JG/sb Anticipated )enditure in FY 2016-2017 2017-2018 Account No. 01105015 -various 01105015 -various Amount $ 350,000 $ 150,000 TOTAL: $500,000 APPROVED AS TO FUNDS AND ACCOUNTS: Fr nc co Gutierrez Executive Director Finance and Management Services Agency Exhibits: 1. Community Enhancement Program Grant Recommendations 2. Nonprofit Program Summaries 3. Nonprofit Agreements 65D-3 65D-4 CEPG RANKINGS AND RECOMMENDATIONS Option A: Award #148. Fund at fall requested amount; remaining funds used for administrative costs. Option 8: Award #1 - #9. Reduce full requested funding amount by 7.5%. 6S ,; M Community Enhancement Program Grant Nonprofit Program Summaries KidWorks CDC -New KidWorks Center and After School Program Expansion Rank: 1 Strategic Plan Alignment: Goal 2 Objective 2a Score: 87.8% Funding Request: $ 125,000 KidWorks will open of a new satellite site in the Santa Anita neighborhood as part of a new City of Santa Ana sponsored affordable housing development. It will also significantly expand the after school and enrichment programming the main center. 1) New Santa Anita KidWorks Center: services include STEAM lessons, homework help, tutoring, college and career readiness for parents and students including college tours and financial aid assistance, a community fair, and a beautification day; 2) Double KidWorks Main Center: support for programming for the significant and much needed expansion of the main KidWorks site would double current enrollment. TKO Youth Foundation -TKO BOXING CLUB Rank: 2 Strategic Plan Alignment: *Goal 2 Objective 2b Score: 86.4% Funding Request: $ 20,000 TKO provides a low-cost, after-school program for at -risk youths as an alternative to gang membership. To challenge these youth to achieve their potential both academically and athletically. Delhi Center - Cultural Arts Program Rank: 3 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 86.2% Funding Request: $ 125,000 The Cultural Arts Program provides a way to achieve cultural equity, access and inclusion in cultural arts by providing children and youth with visual and performing arts classes including dance, music, art, theater, photography, videography, and mural art. Classes are provided during non -school hours, including after school, evenings, and summer. The program also provides an avenue for young people to practice their artistic skills through on-the-job training and leadership development. RAYA (Rise Above Your Ambitions) Foundation - Rise Above Sports Program Rank: 4 Strategic Plan Alignment: *Goal 2 Objective 2b Score: 83.2% Funding Request: $ 21,261 The RAYA Foundation will offer the Rise Above Sports program. This program will consist of the following: 1) 8 week teen (14-18) basketball league, 2) 7 week boys (9-14) basketball league, 3) 7 week girls (9-14) basketball league, 4) 2 basketball skill devekopment/lifeskills clinics, and 5) 1 youth track meet for youth 12 -14 years. Child Creativity Lab -The City as Play Rank: 5 Strategic Plan Alignment: Goal 5 Objective 4b Score: 82.6% Funding Request: $ 45,000 The City as Play is an innovative public -engagement and community -visioning program that uses art -making as its medium. Participants will practice creative skills and problem -solving in community design workshops that help them become active participants in improving their neighborhoods. Facilitators will host 25 community design workshops that will be located in community gathering spots of divested neighborhoods in coordination with local groups to empower residents to re -think their neighborhood through a hands-on, purposeful, and fun design activity well- known for bringing people with little knowledge of how their city works, deep into the process. Pg. 1 Serve the People - Increasing Access to Vision and Eye Care: Mobile Vision Clinic Rank: 6 Strategic Plan Alignment: Goal 5 Objective 6c Score: 82.6% Funding Request: $ 100,000 Serve The People -Community Health Center (STP) is expanding a comprehensive vision care program for individuals experiencing homelessness, low-income working -age adults, low-income senior citizens, and school-age children in Santa Ana. Funding will be a catalyst to launch a mobile vision care unit in its first year of operations which will lead to a sustainable program of optometry and ophthalmology for low-income residents throughout Santa Ana. The program will develop 13 new equitable health access points at 4 community/senior centers, 8 schools, and the Courtyard homeless shelter. STP will provide vision exams with corrective lenses at no cost to the patient. Makara Center for the Arts - Lending Library & Arts Center Rank: 7 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 82% Funding Request: $ 38,000 The Makara Lending Library & Arts Center will strengthen the Santa Ana arts infrastructure by providing residents with improved access to arts education and professional development resources. Social and Environmental Entrepreneurs - The Bicycle Tree - Wrench and Ride Rank: 8 Strategic Plan Alignment: Goal 2 Objective 2a Score: 82% Funding Request: $ 11,382 Wrench and Ride is an eight-week youth program in which participants learn about repair, riding bicycles, bicycle safety, and the many benefits of bicycling. Participants receive a used bike, repair and refurbish the bike, learn about bike safety and ride several miles around the city, experiencing safe and practical cycling practices, guided by a certified bike safety instructor. At the end of the program, graduates get to take their bike home, along with a helmet, lock, and lights. The program is offered at no charge to participants, who are typically recruited through partnerships with Santa Ana organizations, including Latino Health Access, Kid Works, and the Santa Ana Unified School District. Centro Cultural de Mexico en el Condado de Orange - Fandangos in the Schools Rank: 9 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 81.8% Funding Request: $ 54,926 Musicians and dancers from EI Centro Cultural de Mexico introduced over 2000 K -8th grade students and their parents to the Fandango musical tradition of southern Veracruz, Mexico at the OC Educationlar Arts Acedemy. A series of workshops culminated in a Fandango organized by students and parents. CEPG funding will build on this pilot project by expanding the program to Santa Ana public schools, especially those in underserved areas by: 1)incorporating Centro's other music, dance, and art instruction, and 2) laying the organizational groundwork to make this program a permanent liaison between the Centro and Santa Ana's school system. Charles W Bowers Museum Corporation - Capacity building support for the Bowers Museum's community focused programming Rank: 10 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 81.4% Funding Request: $ 84,192 Bowers is committed to expanding access to and funding for the arts in Santa Ana. To achieve this, we will expand access to the museum for low-income residents of Santa Ana by reaching students at Title 1 schools through our Museum School Partnership and by expanding our weekly free admission for Santa Ana residents to include special exhibits as well as general museum access. Further, we will create a strategic plan that focuses on sustainable funding and expanded community access. Pg. 2 LI W i Newsong Community Church of Orange County - theMlX Academy Rank: 11 Strategic Plan Alignment: *Goal 2 Objective 2b Score: 81.4% Funding Request: $ 125,000 the MIX Academy offers a safe and empowering learning center for the whole family in the Willard neighborhood, with 20 types of classes, seminars, and workshops for every age. Fresh, healthy dinner are served before classes at no cost. theMlX academy is a launching pad for dreams and creativity for any age, and designs customized goals for each family member. Empowering and raising up leaders in our own community is a crucial focus and metric for us. This grant will allow us to expand programs, serve more residents, and train local leaders to do the same. Santa Ana Pony Baseball - Jerome Park Youth Baseball Rank: 12 Strategic Plan Alignment: *Goal 2 Objective 2b Score: 81.4% Funding Request: $ 39,700 Santa Ana Pony Baseball will provide a free youth baseball program to kids aged 5 to 8. The season will take place at Jerome Park during the Fall months of August, September, October, and November. The Jerome Park league will consist of the following: 10 Teams, 10 Coaches, 110 youth athletes. The grant money will be used to provide uniforms, equipment, coach development, field reservations, and field maintenance all at no charge to the parents. Taller San Jose Hope Builders - Healthcare Training For Disadvantaged Santa Ana Youth Rank: 13 Strategic Plan Alignment: Goal 2 Objective 4a Score: 79.8% Funding Request: $ 125,000 Hope Builders seeks funding from the City of Santa Ana to expand its existing Healthcare training program by 30%, and in partnership with St. Joseph Health, pilot a new training program to prepare youth as Fitness Professionals. The three healthcare programs will enroll 80 Santa Ana youth, ages 18 to 28, in Administrative Billing & Coding, Clinical Medical Assisting or Fitness Professional instruction. Hope Builders bridges the gap between young adults who face many barriers to employment and employers who need skilled, reliable workers. Orange County Children's Therapeutic Arts Center - After -School Neighborhood Initiative Music Prog. Rank: 14 Score: 79.2% Strategic Plan Alignment: Goal 2 Objective 2a Funding Request: $ 125,000 OCCTAC's After -School Neighborhood Initiative Music Program will provide free musical instruction to 250 Santa Ana youth across 5 Neighborhood Community Centers strategically located in the neighborhood areas where families do not have access to instrumental music education, and/or have transportation challenges. This wonderful Music Program will teach Santa Ana youth how to play a string or woodwind instrument, engage in musical ensembles, and perform in community events throughout the year! Pure Game - Year -Round Youth Recreation Rank: 15 Strategic Plan Alignment: *Goal 2 Objective 21b Score: 79% Funding Request: $ 35,400 Through inclusive sports play plus character education, Pure Game (PG) inspires underserved children to be engaged, self-confident, ethical, resilient, compassionate, and capable of constructive problem solving. PG will provide programming to achieve this at four Kid Works sites and one Boys & Girls Club site in Neighborhood Initiative areas. PG will enroll an average of 60 participants at each site, for a total of 600 unique participants. Play consists of a very simplified form of soccer on a reduced -size field, with portable goals. Our young Field Champions (teacher -mentors) will lead play. Pg. 3 65D-9 The Cambodian Family - Healthy Changes Program (HCP) Rank: 16 Strategic Plan Alignment: Goal 5 Objective 6d Score: 79% Funding Request: $ 125,000 The goal of our HCP is to increase access of underserved, low-income, limited -English -proficient residents of Santa Ana to culturally and linguistically appropriate health care/preventive health services and resources through health education, health screenings, health care accessing services, and healthy living activities, thereby reducing health disparities in our Santa Ana community. Participants will have (1) increased health knowledge and awareness, (2) increased preventative health screenings, (3) improved access to culturally and linguistically tailored preventive health and health care services, and (4) increased health -promoting behaviors. The Wooden Floor for Youth Movement - The Wooden Floor Expansion to the Depot at Santiago Rank: 17 Strategic Plan Alignment: Goal 2 Objective 2a Score: 79% Funding Request: $ 75,000 The Wooden Floor (TWF) transforms the lives of youth in low-income communities through the power of dance and access to higher education. TWF will expand Year -Round Programs in arts, education, and social services into a new annex in the Depot at Santiago, an affordable housing development. The 3,000 square -foot extension to our current campus as a dance studio, education center, and counseling/family resource center in the Depot at Santiago will serve 100 additional TWF year-round students plus 70 additional resident -families for TWF Family Services beginning in September 2017. Charitable Ventures of Orange County - Madison Park Neighborhood Association Rank: 18 Strategic Plan Alignment: Goal 5 Objective 6d Score: 78.5% Funding Request: $ 48,940 Getting Residents Engaged in Exercise & Nutrition (GREEN), is a place -based wellness and learning center, located at Madison Elementary, that provides health, education, community, and leadership opportunities for residents. CEPG will support GREEN activities focused on community health, livability, engagement, and sustainability including: health and wellness workshops and programming; the annual health fair,walk-a-thon, and cultural festival; our ALMA (Aspire, Learn, Mentor, Achieve) Science Academy and supplemental academic programming; and adult education, focused on civic engagement, for parents. Boys & Girls Club of Central Orange Coast (BGCCOC) - College Bound - Santa Ana Rank: 19 Score: 78.4% Strategic Plan Alignment: Goal 2 Objective 2a Funding Request: $ 125,000 College Bound provides low-income/at-risk Santa Ana teen students with quality academic instruction, mentoring, and support to help them graduate high school on time, prepare for university, community college, trade, military or technical school, and set career goals for the future. Advisors help youth to: 1) envision college as an attainable goal; 2) create a road map by setting academic/ career goals with a plan for achievement; and 3) develop the needed skills for college and/or a career. 65D-10 Community Health Initiative of Orange County (CHI OC) - Community Health Access Program Rank: 20 Score: 78.4% Strategic Plan Alignment: Goal 5 Objective 6c Funding Request: $ 60,000 The Community Health Initiative of Orange County (CHI OC) serves the city of Santa Ana by helping families navigate an increasingly complex healthcare landscape in a culturally and linguistically appropriate manner. With over a decade of experience, CHI OC provides Outreach, Enrollment and case management services to vulnerable populations. Through our care coordination model, we strive is to ensure that families we serve not only acquire, but also retain and utilize their services effectively. Community Engagement, Inc. - Paredes de Liberation/Walls of Liberation Rank: 21 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 78.2% Funding Request: $ 125,000 Through Project "Paredes de Liberation" (Walls of Liberation), Community Engagement and Santa Ana Unified School District will collaborate with Santa Ana College (SAC) and community partners to develop murals that will contribute to Santa Ana's rich cultural heritage through arts education. The project will serve an estimated 600 high school students, ages 14 - 19 years old, who will receive articulated college credit through a semester long college level mural class that will be open to all district students and housed at Santa Ana High School (SANS). The project includes SAC faculty who specialize in teaching mural design as well as a team of cross disciplinary arts teachers at SAHS including visual arts, theatre, and film. The project is supported by SAC adult students who will serve as interns, mentors, and volunteers to support both the mural project and the high school students' artistic development. The murals will be developed on site at Santa Ana High School and installed in various locations within the city of Santa Ana. Arts Orange County - Dia del Nino Rank: 22 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 77.2% Funding Request: $ 10,000 Arts Orange County seeks support for its sixth annual "Dia del Nino' program that consists of a full-day festival, and several pre -event workshops that will culminate in the exhibition and presentation of work during the main festival. The festival will feature approximately 35 interactive arts workshops and performances by professional guest artists, local arts organizations, schools, and amateur artists. "Dia del Nino' celebrates the artistic richness and cultural heritage of OC's Latino community through engaging arts experiences, connects underserved residents to local arts organizations, introduces new artistic disciplines, and fosters creativity and exploration among children and families. Charitable Ventures of OC - Santa Ana Building Healthy Communities Thriving Neighborhood Initiative Rank: 23 Strategic Plan Alignment: Goal 5 Objective 4b Score: 77% Funding Request: $ 134,760 The Thriving Neighborhoods Initiative (TNI) will transform 1-3 neighborhoods in Central Santa Ana via the implementation of three major program areas: 1) Thriving Economies - cultivate accessible and sustainable economic development opportunities for low-income residents & small businesses, 2) Thriving Homes - educate residents about tenant rights, municipal code requirements, and housing opportunities, 3)Thriving Spaces - activate existing and new open spaces with programmed recreational opportunities for youth and families, such as exercise, fitness, arts & culture classes, community gardening workshops, walking groups, and bike rides in park poor neighborhoods. Pg. 5 6501-11 www.fit2bel(ids.org - Fit 'n FUN Club Rank: 24 Strategic Plan Alignment: *Goal 2 Objective 2b Score: 76.2% Funding Request: $ 50,000 Fit2beK!ds' (F213K) Fit 'n FUN Club is a free, year-round program serving low-income, high-risk, and special needs families. Our mission is addressing health and wellness at the family -unit level. The program incorporates nutrition education and guided individual and group sports/physical fitness activities for children ages 3-16 years, while maximizing parent participation to build a holistic approach to family health. 12 -weeks enrichment courses include: 1) Together We Run —Across the Nation, 2) GO NUTS! —A Nutrition Competition, 3) WWOW Sports (Wonderful World of Wacky Sports), and 4) Paying it Forward. National Alliance on Mental Illness (NAMI), Orange County - Mental Health Education and Outreach Rank: 25 Strategic Plan Alignment: Goal 5 Objective 6c Score: 75.8% Funding Request: $ 56,500 NAMI Orange County will provide mental health signature education programs and outreach at multiple community/recreation centers throughout Santa Ana. The education programs are designed to empowerfamilies and their loved ones in their mental health journeys. Each program will provide practical tools for understanding, insight, care, communication, empathy, stigma reduction and advocacy. These programs provide needed and lasting benefits during each of the stages of emotional response to crisis: dealing with catastrophic events, learning to cope and moving into advocacy. Centennial Heritage Museum - Creating Employment Opportunities for Youth through History & Nature Rank: 26 Score: 75.6% Strategic Plan Alignment: Goal 2 Objective 4b Funding Request: $ 123,536 Heritage Museum of Orange County will collaborate with Santa Ana Unified School district to develop three after- school youth employment programs aimed at 10 students at Lorin Griset Academy, REACH Academy, and Cesar E. Chavez High School. The students at these particular schools are on the academic cusp and are vulnerable to become high school drop outs. The three programs focus on different areas of museum operations, hence developing three unique opportunities on site for placed based learning: history docent's interns, farm interns, and conservation and habitat restoration interns. The three programs emphasize various aspects of the museum. Orange County Children's Therapeutic Arts Center -Multi Arts Resources, Training, and Support Rank: 27 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 75.6% Funding Request: $ 125,000 SMARTS will provide year-long intensive professional development, technical assistance and fund development to bring all Santa Ana Arts constituencies together. Individual artists and Arts organizations will be provided with ongoing professional development in important areas, including: grant writing and budgeting, fund development, program development, marketing strategies, community engagement and community collaboration. Joint and individual program design and funding appeals including creative place making, arts, dance and music events and community engagement will be identified and developed for all participant voices within the appeals. WE 65D-12 Academy of International Dance - Healthy Lifestyle Rank: 28 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 75.2% Funding Request: $ 20,000 The Academy of International Dance's Healthy Lifestyle program educates and motivates families about eating nutritious meals, exercising regularly and learning about health topics through dance. Parents of the academy will be given excellent health and nutrition seminars yearly. Students will attend a special dance acting class that will empower them to take care of their bodies and minds. In order to fully embed what the parents and students learned in class or the seminars, they will be given illustrated reading material to study and short quizzes pertaining to the information they receive. Community Engagement, Inc. - Una Vuelta a la Manzana/Once Around the Block Rank: 29 Score: 74.8% Strategic Plan Alignment: Goal 5 Objective 4b Funding Request: $ 125,000 Una Vuelta a la Manzana/Once Around the Block is a program in which residents in our 64 Santa Ana neighborhoods will come together over 6 months to organize and throw 64 neighborhood block parties across the City of Santa Ana. These community events will be a mechanism to inspire community building since engagements like block parties have been shown to provides a casual and relaxed setting where residents can meet, play, eat and hopefully find similarities that bring them closer together. Friends of the Santa Ana Public Library - Children's Patio Enhancement Rank: 30 Strategic Plan Alignment: Goal 2 Objective 2a Score: 74.2% Funding Request: $ 90,000 This project will provide 3,000 sq. ft. of additional space to serve Santa Ana children at the Santa Ana Public Library. The project proposes to expand the Children's Patio west of the Main Library. Performance, craft, and reading spaces will be supplemented with raised bed gardens where children may learn about sustainable living and drought tolerant gardening. The result will be a long-term improvement in educational programming available to children in Santa Ana. Orange County Fair Housing Council, Inc. - Tenants' Repair and Deduct Short -Term Loan Program Rank: 31 Strategic Plan Alignment: Goal 5 Objective 4b Score: 74% Funding Request: $ 40,000 California Civil Code Section 1942 provides a remedy to some tenants in need of habitability -related repairs to their unit. The code allows tenants to make repairs deemed necessary to maintain habitability and deduct the cost from the following month's rent. This remedy is typically referred to as "repair and deduct." Before tenants utilize this remedy they have to give the landlord a reasonable opportunity to make such repairs. Additionally, a tenant is limited to use of the remedy to twice in any 12 -month period and to repairs that can be made for no more than one month's rent. Legal services to tenants who might experience retaliation by their landlord will also be provided. Big Brothers Big Sisters of Orange County - High School Bigs-School-Based Mentoring Program Rank: 32 Strategic Plan Alignment: Goal 2 Objective 2a Score: 73.8% Funding Request: $ 25,000 High School Bigs is an after school, site-based mentoring program that works with principals, teachers, and counselors to identify students that need additional academic, social and behavioral support, and high school students that are eager, willing and capable to serve as academic tutors and peer mentors to the elementary students. The program helps to bring one-to-one tutoring and mentoring to youth that may not have families engaged enough to refer their children to our traditional community-based model of mentoring. Pg. 7 65D-13 Casa de la Familia - LaTEENa Power Curriculum Rank: 33 Strategic Plan Alignment: Goal 2 Objective 2a Score: 73.8% Funding Request: $ 24,000 The LaTEENa Power Curriculum (LPC) provides a 9 -week curriculum that encourages Latina adolescents to explore 7 strengths they have inherited from their Latin American culture, and to use those strengths to overcome difficult life circumstances and transform a negative self-image into empowering self -acceptance and self-determination. The 7 LaTEENa Strengths are as follows: Espiritu Creativo/Creative Spirit, The Aguantadora's Passionate Determination, The Comadre's Networking Ability, The Diplomatica's Discretion, The Atrevida's Courage, The Malabarista's Balance, and The Reina's Confidence and Strength. Orange County Community Housing Corp - SteppingUP Rank: 34 Strategic Plan Alignment: Goal 2 Objective 2a Score: 73.6% Funding Request: $ 50,000 SteppingUP is a free after-school program that works to educate and prepare at -risk individuals about the benefits of staying in school, graduating on time and gaining a higher education that will assist in breaking the generational cycle of poverty. SteppingUP's intensive year-round program has a 100% graduation rate and is 99% successful in moving students to higher education. Participants are provided weekly advising sessions, leadership training, STEM related education, reading comprehension and analysis, like -skills training and educational excursions. The Illumination Foundation - Children's Resource Center Rank: 35 Strategic Plan Alignment: Goal 2 Objective 2a Score: 73.2% Funding Request: $ 125,000 The Children's Resource Center (CRC) is a quality care environment that provides homeless and at -risk children with the services necessary to overcome the effects of poverty and break the cycle of generational homelessness. Programs include free early childhood education, tutoring, nutritional meal service, counseling, art and drama workshops, after-school academic assistance, parenting classes, recreation, and speech and language therapy. The CRC has also become a community hub: Engaged parents lead neighborhood meetings to discuss neighborhood issues. Vietnamese Community of Orange County, Inc. - Draw Out the Stigma Rank: 36 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 73% Funding Request: $ 55,000 Social stigma remains a serious barrier to receipt of mental health services by Latino and Asian adults; fear of cultural stereotypes and misperceptions about mental health diagnoses and treatment stop those in need from accessing services. VNCOC proposes creating a positive program for promoting mental health by using the arts to Draw out the Stigma through the self-expression using multiple art forms, dialogue to generate meaningful conversations, and art exhibitions to promote reflection and awareness in order to reduce the stigma and discrimination of mental illnesses. Rise Above Your Ambitions (RAYA) Foundation - Coaching Access for Success in Academics (CASA) Rank: 37 Score: 72.6% Strategic Plan Alignment: Goal 2 Objective 2a Funding Request: $ 2,075 RAYA Foundation will offer two (2) "Coaching Access for Success in Academics (CASA)" workshops as well two tours of higher education institutions for 80 unduplicated parents/guardians of its junior high and high school participants and members of the general Santa Ana public. Workshops will be held at Santa Ana Recreation or Community Centers, based upon availability or the Raya home and will be approximately 2 hours in length. Workshops will be held weeknight evenings and/or weekends as needed to make them convenient and accessible for parents/guardians. M 65D-14 The Cambodian Family - Plan Ahead Youth Program (PAPP) Rank: 38 Score: 72.2% Strategic Plan Alignment: Goal 2 Objective 2a Funding Request: $ 125,000 The Plan Ahead Youth Program (PAYP) is to help young people develop their visions for the future and attain the skills to turn their visions into reality. PAYP will provide services to 200 participants who are low-income youth and parents in Santa Ana in order for them to thrive in the areas of academics, physical and mental health, leadership skills, and career opportunities. Youth and their parents will participate in activities that are organized year-round at our community center in Santa Ana, an average of 6-8 hours per week, around four well -integrated institutes: Academic, Leadership, Career, and Health and a parent strategy. Human Options, Inc. -Safe Options for Seniors Rank: 39 Strategic Plan Alignment: Goal 5 Objective 6e Score: 71.8% Funding Request: $ 37,000 The Safe Options for Seniors (SOS) program aims to offer prevention and intervention services to Santa Ana residents 50 years of age and older, who are at risk or who are victims of elder abuse or late life family violence. In 2014, over 9,000 reports of elder and dependent adult abuse were reported. The program will consist of new educational presentations and groups focused on assisting victims of elder abuse and late life family violence (Financial Scams, Senior Empowerment, A Journey to Empowerment, and Wellness Group). Services will be provided in the Santa Ana community and in Santa Ana Senior Center(s), and a therapist will be able to provide one-on-one services. Gay and Lesbian Community Services Center of Orange County - Invest in Santa Ana LGBTQ Youth Rank: 40 Strategic Plan Alignment: Goal 5 Objective 6d Score: 70.8% Funding Request: $ 63,079 Invest in LGBTQYouth, provides school-based and after-school programming that will create positive school climates and promote health, wellness and community engagement for lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ) youth in Santa Ana. Funding will allow us to provide programming in 6 Santa Ana schools, as well as after-school and summer components. We have an agreement with SAUSD as a partner on the School Climate Committee and requests from school administrators to provide these much needed services. Orange County Council Boy Scouts of America - ScoutReach Youth Development & Leadership Training Rank: 41 Score: 70.8% Strategic Plan Alignment: Goal 2 Objective 2a Funding Request: $ 124,067 We aim to expand ScoutReach to an additional 227 youth in a hands-on character building, life skills and leadership program. Our program involves parents and mentors and provides problem -solving, team -building and outdoor activities. Studies on Scouting show benefits, such as gains in grades, attendance and engagement in school as well as life-long impacts. A three year study from Tufts University shows a positive correlation of Scouting's role in positive youth development in the areas of competence, confidence, connections, caring relationships and character development. Pg. 9 65D-15 Charitable Ventures of OC - Santa Ana Grants for Blocks- Connect to Council Rank: 42 Strategic Plan Alignment: Goal 5 Objective 4b Score: 70.4% Funding Request: $ 65,880 Connect to Council (C2C) proposes to work with residents, community organizations, local schools, community partners and the City to strengthen neighborhood groups, create safe environments, improve health and wellness, and create opportunities for neighbors to help neighbors to increase leadership skills and the capacity of neighborhood associations to more effectively solve problems and fully utilize resources that they do not know are available to help improve neighborhood conditions and community health and to access fresh produce and the arts. Healthy Smiles for Kids of Orange County - Smiles X -Press Teledentistry Program Rank: 43 Strategic Plan Alignment: Goal 5 Objective 6c Score: 70.2% Funding Request: $ 125,000 The Smiles X -Press Teledentistry program is an innovative service that seeks to ensure that every child in Orange County has access to oral health care by utilizing telehealth technology to provide dental care in underserved communities. Healthy Smiles has begun implementing this program in elementary and preschools, including within Santa Ana Unified School District (SAUSD). With funding from the city of Santa Ana, Healthy Smiles can offer the Smile X -Press program at an additional five schools, providing thousands of children with a Virtual Dental Home. Legal Aid Society of Orange County - Health Consumer Action Center Rank: 44 Strategic Plan Alignment: Goal 5 Objective 6d Score: 69.2% Funding Request: $ 110,579 LASOC will provide Santa Ana residents with holistic legal services to improve their health and wellness by working with the California Endowment and creating medical legal partnerships with other nonprofits to assist Santa Ana residents who are not able to access health coverage or navigate through the health care system due to systemic barriers and problems. LASOC will provide outreach, legal representation, health retention and utilization assistance, consultation, advocacy, information, education, referrals, advice and counsel, and one-on-one legal assistance where Santa Ana residents have direct access to in-depth legal representation in the areas of dissolution of marriage, paternity, child support, child custody, landlord -tenant, bankruptcy, employment law, health, tax, permanent orders, and immigration relief. Young Women's Christian Assoc of No. Orange Co - Neighborhood Link to Breast Cancer Screening Rank: 45 Strategic Plan Alignment: Goal 5 Objective 6c Score: 68.6% Funding Request: $ 35,000 The purpose of our program is to provide quality breast cancer screening and breast self-awareness to 4,000 at -risk, multicultural, uninsured women, 40 years or older, in their own neighborhoods, in their own languages, and in a manner consistent with their cultural belief. We work with two mobile digital mammogram vendors who provide digital state of the art mammograms and navigate women to diagnostic care. Should cancer be detected, we partner with local breast cancer centers that provide surgery and follow up care. Pg. 10 6501-16 Pure Game - Pure Game After -School Programming Rank: 46 Strategic Plan Alignment: Goal 2 Objective 2a Score: 67.2% Funding Request: $ 47,400 Through inclusive sports play plus character education, Pure Game (PG) inspires underserved children to be engaged, self-confident, ethical, resilient, compassionate, and capable of constructive problem solving. With a CEP grant, PG will provide programming to achieve this, after school and during summer break, at 14 schools in Neighborhood Initiative areas. Participants will have fun, exercise, and grow in character, becoming better able to treat others respectfully, value themselves, think positively about their own futures, and be less vulnerable to gang recruitment. Veterans Legal Institute - Homeless Veterans Free Legal Clinics Rank: 47 Strategic Plan Alignment: Goal 1 Objective 1g Score: 65.8% Funding Request: $ 106,720 The Homeless Veteran Free Legal Clinics are designed to reach out to vulnerable veterans who have unique and significant barriers to self sufficiency. VLI reaches out with mobile free clinics to known homeless veteran hotspots. For Santa Ana, that includes the homeless quarter at the Santa Ana Civic Center. These "Military Monday" clinics are invitations for free legal advice and counsel, community conversation, and presentations on expungements, landlord/tenant, bankruptcy, and other civil issues. Homeless veterans can come to a relaxed setting at the Starbucks right next to the quarter, drink coffee, and meet with an expanded staff who all have military backgrounds. Council on Aging - Southern California - ReConnect Early Intervention Services for OlderAdults Rank: 48 Strategic Plan Alignment: Goal 5 Objective 6e Score: 65% Funding Request: $ 84,246 ReConnect is a countywide program that provides short-term culturally and linguistically competent services (1 to 12 months) to improve the psychosocial health and quality of life of vulnerable, low-income older adults by engaging them in healthy life patterns and activities. The Reconnect program delivers services in 6 different including Hispanic, Vietnamese, Korean, Chinese, and Filipino seniors. The proposed program would expand programming at the senior centers in the city of Santa Ana. With the goal of increasing the number of enriching activities related to art, health, and culture. Court Appointed Special Advocate - Mentor -Advocate Program Rank: 49 Strategic Plan Alignment: Goal 2 Objective 2a Score: 63.8% Funding Request: $ 50,000 Court Appointed Special Advocates (CASA) of Orange County's Mentor -Advocate Program has been in operation since 1985. CASA recruits, screens and trains community volunteers to equip them to mentor and advocate for a segment of our most highly victimized population - children in the dependency system. Our court-appointed CASA volunteers are trained and supported to connect with the youth, to identify needs and concerns, to address ongoing crises that erupt in these challenging cases and to advocate for their resolution. Young Women Christian Association of North Orange County - YWSafe Self Defense Program Rank: 50 Score: 63.4% Strategic Plan Alignment: Goal 1 Objective 2d Funding Request: $ 45,440 We will educate and train women about self-defense who use public transportation to work or school. This bi-lingual (English/Spanish) program teaches students about self-defense awareness and preparation. We discuss sexual assault definitions of the law so the student identifies potentially dangerous situations will have knowledge of her options. Training skills include risk avoidance, body language, self-defense and the understanding of the impact and effects of sexual assault. Pg. 11 65D-17 Project Access, Inc. - "Pathways out of Poverty After -School and Summer STEAM Program" Rank: 51 Score: 62.8% Strategic Plan Alignment: Goal 2 Objective 2a Funding Request: $ 38,980 Project Access seeks grant funds from the city of Santa Ana to expand its 10 -week Summer STEM pilot program into a year-round program titled "Pathways out of Poverty After -School and Summer STEAM Program". Grant funds will support the critical program costs of a part-time STEAM Instructor position, STEAM/STEM learning materials, and focused STEAM field trips for youth. The program will expand access during the key after-school hours for low-income youth, and also provide youth with expanded learning opportunities, field trips, and hands-on learning. Hands Together -A Center for Children and Families - Morning Garden -Healthy Living Rank: 52 Score: 62.4% Strategic Plan Alignment: Goal 5 Objective 6d Funding Request: $ 33,000 Morning Garden is a classroom educational and parenting program for low income mom's who have preschool aged children living in the downtown Santa Ana 92701 area. An advanced early education preschool is provided by Hands Together enabling their parent to attend the morning classes. Community School of the Arts Foundation - Arts Education for Students with disabilities Rank: 53 Score: 62.2% Strategic Plan Alignment: Goal 2 Objective 2a Funding Request: $ 123,130 Provide arts education, including music, theater, creative arts, and dance classes at no cost to an often marginalized population: students 5-22 years old identified with moderate to severe disabilities. Our program will address the needs of low-income, special needs children at nine SAUSD schools, by providing a safe and supportive learning environment. Public Health Foundation Enterprises - Little by Little School Readiness Program Rank: 54 Score: 62.2% Strategic Plan Alignment: Goal 5 Objective 41b Funding Request: $ 124,842 The Little by Little School Readiness Program (LBL) is an evidence -based early literacy program that strives to create a stimulating home environment, foster literacy and improve school readiness for underserved children. Community Enhancement Program funds will be utilized to begin a pilot LBL site in Orange County and will provide LBL services to nearly 5,000 women and children at Public Health Foundation Enterprises' (PHFE) "WIC Main Street". Vietnamese Community of Orange County, Inc. - Santa Ana Pathway to Wellness Rank: 55 Strategic Plan Alignment: Goal 5 Objective 6e Score: 61.6% Funding Request: $ 75,000 VNCOC will create a group program for older adults. "The Santa Ana Pathway to Wellness" to improve the health and wellness of all seniors by increasing their nutrition knowledge and skill at preparing low cost healthy meals, establishing a habit of daily walking with less fear, and decreasing isolation via group activity with neighbors. The program includes two components: nutrition classes and a walking program. Young Mens Christian Association (YMCA) of Orange County - Soccer and Aquatics Program Rank: 56 Score: 53.4% Strategic Plan Alignment: Goal 5 Objective 6d Funding Request: $ 50,000 The Santa Ana Family YMCA answers the community need by providing soccer and swim programs at our 2.5 acre Sports and Aquatics Center. Pg. 12 65D-18 Pg. 13 65D-19 65D-20 NOTE: Same agreement will be used for nonprofit organizations approved for the CEPG program. COMMUNITY ENHANCEMENT PROGRAM GRANT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND This Community Enhancement Program Grant Agreement ("Agreement") is made and entered this _ day of 2017, by and between 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"), and Organization Name , a California section 1501(c)(3) Nonprofit Organization ("Grantee"), collectively referred to herein as the "Parties". RECITALS: A. On October 14, 2016, applications for the Community Enhancement Program Grant (CEPG) were released. B. On December 6, 2016, the City Council approved the recommended Fiscal Year 2016-2017 CEPG Grants, thereby allocating $500,000 to nonprofit organizations for public services that support health, human and/or quality of life services to Santa Ana residents. C. On December 6, 2016, the City Council reviewed all applicants and determined that Grantee is hereby awarded a CEPG based on its Application for its public services ("Project') attached hereto and incorporated herein as Exhibit A, and authorized the execution of this Agreement. D. In undertaking the performance pursuant to this Agreement, Grantee represents that it is skilled and knowledgeable in the public services arena and that any Project performed hereunder will be performed in compliance with such standards as may reasonably be expected from a service provider. 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. Grant Activities. Grantee agrees: 1.1. To perform the activities described in the Grant Application and Timeline submitted to City for consideration dated , 2017, a copy of which is attached as Exhibit A and incorporated into this Agreement as if set out in full. Service levels in the application may be reasonably adjusted at the sole discretion of the City, proportionate to the level of funding awarded. 1.2. To submit two reports (each, a 'Report'), one at the midway point of the Project, and one at the end of the Project, as reasonably determined by the City. The Reports shall include, at a minimum, the total number of Santa Ana residents served, a description of activities and accomplishments, and financial documentation to support expenditures, such as true copies of invoices, receipts, canceled checks, bank statements, credit card statements, payroll records, contracts or documentation pertaining to costs for subcontractors, and/or other documentation supporting and evidencing how the CEPG funds were expended during the applicable reporting period. If necessary, the City, in its sole discretion, may request additional reports and/or information from the Grantee regarding the Project. No personally identifiable information shall be included in any of the Reports, except where specifically requested. The Reports shall be in a format that is reasonably acceptable to City. City may request additional information as City, in its sole discretion, determines necessary to monitor performance of this Agreement. City shall have the right to use any Reports submitted by Grantee, or any portion thereof, for any reason. 1.3. To facilitate site visits, conference calls and audits of Grantee, as reasonably requested by City. 2. Funding, 2.1. Subject to Grantee's performance of all required actions under this Agreement, City shall provide funding in two disbursements, the first to be issued after execution of the Agreement, and the second at the midway paint of the Project, after the City's review and approval of the midway Report described in section 1.2 of this Agreement, in an amount not to exceed Thousand Dollars ($ ) ("Grant Amount" or "Grant"). 2.2. Appropriate performance of the Grantee will be determined by City in its sole discretion. City reserves the right to cease funding after each disbursement. 2.3. City represents that there is no correlation or connection between its selection of organizations for grant awards and an organization's business relationship or potential business relationship with City. 3. Term. This Agreement shall be effective upon signature by both Parties and shall expire one year from the date first written above, unless terminated earlier in accordance with this Agreement. The term of this Agreement may be extended upon a writing executed by the City Manager and City Attorney. 4. Termination. 4.1. City may immediately terminate this Agreement upon one or more of the following: 4.1.1. Grantee's violation of any federal, state or local law or regulation. 41.2. Grantee's breach of any of the terms or conditions of this Agreement, including the Application and Timeline, or any unapproved deviation from said documents which has not been cured within 30 days of written notice of such breach. 4.2. In the event the Agreement is terminated under Section 4.1, City reserves the right to require Grantee to refund any or all grant funds awarded to Grantee under this Agreement, and Grantee agrees to refund to City any or all grant funds awarded under this Agreement. 5. Limitation of Liability. 5.1. IN NO EVENT SHALL CITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXPENSES FOR ANY NEGLIGENCE, BREACH OF CONTRACT OR ANY OTHER ACT ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIVITIES COVERED HEREUNDER 5.2. Section 5 and Section 6 do not limit Grantee's rights, including its ability to seek recovery, against anyone other than City, its directors, officers, employees, agents, successors and assigns. 6. Indemnification. 6.1. Grantee shall defend, indemnify, protect and hold harmless the City, or its elected and appointed officers, employees, members or agents from and against all claims for damages, liability, cost and expense (including without limitation attorney's fees) arising out of or alleged 65D-22 by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Grantee, and Grantee's employees, subcontractors or other persons, agencies or firms for whom Grantee is legally responsible in connection with the execution of the work covered by this Agreement. Grantee shall have no duty to indemnify or hold harmless the City if claims, damages, liability, costs, expenses (including without limitation, attorney's fees) arise from the sole negligence or sole willful misconduct of the City subsequent to declaration by the Grantee. Grantee's obligations shall survive the termination of this Agreement. 6.2. Grantee agrees to hereby fully release and forever discharge the City from any and all claims, demands, damages, losses, and liabilities (hereinafter collectively referred to as "claims"), which are or may be related to or in any way connected with the negligence or willful misconduct of its officers, officials, employees, or agents in connection with the creation, painting, performance or installation of the Project hereunder. 6.3. Grantee further agrees that City may in good faith and on reasonable terms settle any such claims and that City's right to indemnification shall extend to any such settlement, provided City has given notice of such claim and its intent to settle. City's right to indemnification is in addition to, and may be exercised independently of, any remedy held by City under this Agreement, at law or in equity. The indemnity provision set forth in this Agreement shall survive the termination or expiration of this Agreement indefinitely. 7.lnsurance, 7.1. 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, 7.1.2. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit C upon execution of this Agreement and shall be approved in form by the City Attorney. 7.1.3. 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. 7.1.4. 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 65D-23 obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 7.1.5. 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. 7.2. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: 7.2.1. Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. 7.2.2. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. 7.2.3. 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. 7.3. 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. 8. General Provisions 8.1. Grantee shall acquire prior written permission from City for any use of the City name or logo in association with its Project. 8.2. If any parts of this Agreement are held to be invalid or unenforceable, the remaining parts of the Agreement shall continue to be valid and enforceable. 8.3. This Agreement shall be construed and the rights and obligations of the Parties shall be determined In accordance with the laws of the State of California, with venue of any action arising out of this Agreement in Orange County, California. 8.4. Grantee shall comply with all governmental requirements which may now or in the future become applicable to its activities under this Agreement. 8.5. This Agreement, including Exhibit A, Application, and any amendments or schedules hereto, contain the full understanding and agreement of the Parties with respect to its subject matter, and no waiver, alteration or modification of any of the provisions to this Agreement shall be binding unless in writing and signed by an authorized officer of both Parties. 8.6. No waiver by either party or any breach, default, or serles of breaches or defaults, and no failure, refusal, or neglect of either party to exercise any right, power, or option given to it under this Agreement or to insist upon strict compliance with the terms of this Agreement shall constitute a waiver of these provisions with respect to any subsequent breach or waiver by 65D-24 either party or its right at any time thereafter to require exact and strict compliance with provisions of this Agreement. 8.7. Any notice or other communication required or permitted to be made or given by either party pursuant to this Agreement will be in writing and will be deemed to have been duly given: (i) five business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission Is produced by the sending machine; or (iii) when delivered if delivered personally or sent by express courier service. All notices to City shall include a reference to the Project title. All notices will be sent to the other party at its address as set forth below or at such other address as such party will have specified in a notice given in accordance with this section: Grantee: City: City of Santa Ana Clerk of the Council (M-30) 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 FAX (714) 647-6956 B.B. This Agreement is subject to all applicable local, State and Federal laws. 8.9. Grantee agrees to comply with all applicable equal opportunity and affirmative action laws as appropriate, Grantee 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. Grantee affirms that it is an equal opportunity employer (if applicable) and shall comply with all applicable federal, state and local laws and regulations. 8,10. Any funds provided under this Agreement that are not expended, obligated or otherwise committed by the termination or expiration of this Agreement shall be immediately returned to City. 8.11. Grantee shall maintain all pertinent financial and accounting records pertaining to this Agreement in accordance with generally accepted accounting principles and other procedures reasonably specified by City. Upon termination or expiration of this Agreement or request by City, Grantee shall provide, at its expense, copies of all financial and accounting records produced by it arising out of this Agreement. 8.12. Grantee shall allow audits, compliance or special reviews and inspections, including on- site inspection, with or without prior notice, of Grantee's facilities by City or by third parties 6501-25 designated by City, or their authorized representatives. Grantee shall provide its full cooperation for any such audit, review or inspection, including providing timely access, for examination and copying of records (including computerized records) pertinent books, documents, papers, computer programs and records and reasonable access to its personnel. 8.13. 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 Grantee under this Agreement ("Documents & Data"). Grantee 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. Grantee represents and warrants that Grantee has the legal right to license any and all Documents & Data. Grantee makes no such representation and warranty in regard to Documents & Data which were provided to Grantee 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. 8.14. Grantee 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 Grantee performs the services which are the subject matter of this Agreement; however, the services to be provided by Grantee shall be provided in a manner consistent with all applicable standards and regulations governing such services. Grantee shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 8.15. Neither party shall assign any rights or obligations under this Agreement. 8.16. Each party covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 8.17. Each party warrants that they have executed this Agreement knowingly, freely and voluntarily and with full knowledge of its legal consequences. All parties involved warrant and represent that, prior to executing this Agreement, each party has had the opportunity to review and consider this matter with legal counsel, and that the terms of this Agreement, and its consequences, are fully understood by each party. 8.18. This Agreement represents the entire agreement and understanding between the parties, and supersedes any and all prior agreements and understandings between the parties, whether oral or written. 8,19. 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. 6501-26 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 RECOMMENDED FOR APPROVAL: Robert C. Cortez Deputy City Manager CITY OF SANTA ANA David Cavazos City Manager GRANTEE: Name: Title: 6501-27 EXHIBIT A COMMUNITY ENHANCEMENT PROGRAM GRANT APPLICATION 65D-28 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: EVALUATION OF OPTIONS CONCERNING POTENTIAL TRANSITION TO A BY -DISTRICT ELECTIONS SYSTEM 1 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: .9 11.710001 _ck ❑ As Recommended As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For__ CONTINUED TO FILE NUMBER Discuss the information and options contained in this report and provide further direction. DISCUSSION At the December 6, 2016 City Council meeting, Mayor Pro Tem Sarmiento, Councilmember Tinajero and former Councilmember Amezcua placed an 85A item on the agenda to consider establishing a by -district elections system in the City of Santa Ana. Council directed staff and the City Attorney to prepare a report addressing the following: 1. Evaluate various municipal election systems, including at -large systems, by -district systems and mixed systems. 2. Evaluate the transition process from the City's existing from district/at-large system to a by -district system. 3. Evaluate the option of holding a Special Election in 2017 to consider the transition to a by - district system. In a from -district election system the city council candidate must reside in a specific election district, but is elected by all voters in the City. This is the current system by which Santa Ana Council Members are elected. In a by -district election system, the city council candidate must reside within an election district that is a divisible part of the city and is elected only by voters residing within that election district. 1. Evaluation of Various Municipal Election Systems A. City of Anaheim By -District with Six Districts and a Mayor elected at -large. 65E-1 Evaluation of Options Concerning Potential Transition to By -District Elections System December 20, 2016 Page 2 B. City of Riverside By -District with Sever voting rights unless to Districts and a Mayor elected at -large and the Mayor has no break a tie vote. C. City of Huntington Beach Seven Council Members elected at -large without districts and a Mayor is selected from among the Council Members by the Council Members. D. City of Newport Beach Seven Council Members elected from districts (like Santa Ana) and the Mayor is selected from among the Council Members by the Council Members with a one- yearterm. E. City of Glendale Five Council Members elected at -large and the Mayor is selected from among the Council Members by the Council Members. F. City of Sacramento Eight Council Members elected by district and the Mayor is elected at -large for a four-year term. G. Large Cities in California: Long Beach, San Diego, Los Angeles, etc. These large cities have various election systems with different models involving full- time Council Members in most cases and in some cases City Administrators. Since these cities are not City -Manager forms of government I did not evaluate their election system, but I can if so requested. 2. Process of Transitioning To A By -District System • Must Draft Charter Amendment • Must Develop the Various District Boundaries • Must Decide Whether to Maintain an Elected, At -Large Mayor • Must Have All Election Resolutions Prepared 88 -days Before the Election Date • Must Appropriate or Budget Funds—Estimated $250,000 for the Election 3. Evaluation of Holding a Special Election in 2017 As the City evaluates its options you may be told that the City does not have to submit the question to the voters. This is not accurate because while Governor Brown signed AB 278 into law on September 28, 2016 providing that cities with populations over 100,000 could change their election system by ordinance, without voter approval, this law does not preempt the Santa Ana City Charter. The existing election system is provided for in the City Charter so any changes must be approved by the voters. 65E-2 Evaluation of Options Concerning Potential Transition to By -District Elections System December 20, 2016 Page 3 A Special Election may be held in 2017. The Clerk of the Council can provide election schedules and timailnes if the Council desires to pursue changes, confirm the possible election dates and discuss how the terms of the existing Counollmembers will work and be Implemented, P, gA6ImpACT There is no Immediate fiscal impact at this time in exploring the various options. Sonia R. Carvalho City Attorney 65E-3 65E-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: ADOPT THE FISCAL YEAR 2015-16 SURPLUS ALLOCATION PLAN AND APPROVE APPROPRIATION ADJUSTMENT (STRATEGIC PLAN NOS. 1, 1; 2, 1, 2) L4' r CITY NJACjER BACKGROUND CLERK OF COUNCIL USE ONLY: ® As Recommended © As Amended ® Ordinance on 1" Reading 0 Ordinance on 211 Reading El Implementing Resolution 0 Set Public Hearing For CONTINUED TO FILE NUMBER It is important to provide background prior to staff recommendations, given the significance of the Triple Flip Sales Tax revenue in the amount of $5,600,000. During the June 21, 2016 City Council Meeting, staff provided a projected fiscal year 2015-16 General Fund Surplus range of $1,500,000 to $3,500,000. This projected range has remained unchanged and was on target with a final balance of $3,500,000. However, the City later received communication from the State of California that they were issuing the final true -up payment from the Triple Flip Sales Tax program, totaling $5,600,000. Although payment was received in July 2016, the timing of the receipt of the revenue was required to be accrued back to fiscal year 2015-16. As a result, the combination of the initial projected Surplus and receipt of the true -up from the Sales Tax Triple Flip increased the final surplus amount to $9,100,000. The completion of the City's financial audit during December 2016, certified the General Fund's Surplus for fiscal year 2015-16 in the amount of $9,100,000. Below is a summary of the recommended actions proposed for the FY 2015-16 Surplus Allocation Plan. Review and select an option for the Surplus Allocation Funds for Fiscal Year 2015-16 in the amount of $2,620,000: Option A: Public Safety and Neighborhood Improvement Committee recommended the following initiatives, total of $2,620,000: • Skate Park- $1,120,000 • Park Development/ Joint Use - $1,500,000 Option B: Enforcement and Neighborhood Public Safety Initiatives to be utilized for various Police Department purchases total of $2,620,000 (Exhibit 1): • Enforcement (reduction in crime, auto theft, domestic violence) • Prevention • Intervention 65F-1 Budget Surplus Allocation Plan December 20, 2016 Page 2 2. Approve $880,000 from the Fiscal Year 2015-16 Surplus Allocation Funds for the following items: Public Safety initiative of the shared cost of construction for the County Animal Shelter - $750,000 Public Safety Communication — 800 MHz Partnership Costs, to fully fund obligation - $130,000 Approve formal implementation of items previously approved by Council of the unanticipated Triple Flip of $5,600,000 (Exhibit 2) • Enterprise Fund Assessment reduction to the General Fund — $2,388,082 • Transfer of Graffiti Abatement Services from the Sanitation Fund to the General Fund —$1,200,000 • Civic Center Safety and Security Enhancement Initiatives — $731,836 • Public Safety Communication — 800 MHz Partnership Costs — $1,280,082 The above -referenced items require Appropriation Adjustments and are recommended to be funded from the Fiscal Year 2015-16 General Fund Balance and appropriating the amount to the Council Special Projects Fund expenditure and reserve accounts as outlined in the Surplus Allocation Plan noted above. DISCUSSION During the most recently completed two fiscal years, 2014-15 and 2015-16, Finance and Management Services Agency (Finance Staff) upon conclusion of the City's annual audit have prepared a plan allocating General Fund Surplus Funding for Council Consideration. During the June 21, 2016 City Council Meeting, Finance Staff identified a potential General Fund surplus range for Fiscal Year (FY) 2015-16 between $1,500,000 to $3,500,000. However, the City's General Fund Surplus increased to $9,100,000, largely as a result of increased revenue derived from repayment from the State of California Board of Equalization for Sales Tax -Triple Flip totaling approximately $5,600,000. Public Safety Initiatives $2,620,000: As noted above direction was provided to Finance Staff to evaluate the Public Safety initiatives. The options were compiled (see below) from recommendations made by the Public Safety and Neighborhood Improvement Committee (Committee) on November 22, 2016 that may be funded from the remaining General fund Surplus projection of $1,500,000 to $3,500,000. Option A - ($2,620, 000) The Committee recommended evaluation of the appropriateness in developing a Skate Park and entering into a Joint -Use agreement for the development of Parks project as a means of fulfilling the Public Safety initiative of a Preventive program. The Parks, Recreation and Community Services Agency (PRCSA) has proposed to construct a Skate Park; similar to the Centennial Facility at Memorial Park or at Angels Community Park. The cost estimate provided by PRCSA with developing a Skate Park is approximately $1,120,000. 65F-2 Budget Surplus Allocation Plan December 20, 2016 Page 3 Additionally, PRCSA also evaluated the feasibility of establishing a Joint -Use agreement for the purpose of developing a Park Capital Improvement Project. The proposal by PRCSA is to develop a Park for the Lacey neighborhood with the acquired half acre site. Development of this park will allow for Community Garden and enhancement of joint -use programs at adjacent Garfield Elementary School. The estimate provided by PRCSA in entering into this agreement is approximately $1,500,000. Option B - ($2,620,000) The Committee also recommended Staff to evaluate additional Public Safety initiatives that deal with Prevention, Intervention and Enforcement. The Police Department provided a list of the initiatives that meet the spirit for these goals. The Police Department is requesting funding for Front Line Law Enforcement Services ($1,480,000), including funding for traffic safety education and enforcement, prostitution mitigation, foot/bike patrols, and other community based programs that are both proven to be effective, and are highly popular with residents. In addition, the Police Department proposes adding $580,000 to support the Department's hiring efforts. Police Officer hiring is one of the biggest challenges facing law enforcement throughout the nation. These additional monies will fund a recruitment video, a lateral incentive program, additional marketing and advertising expenses, and overtime to attend recruitment events. The Police Department also proposes adding $504,376 to fund Crime Prevention/Intervention Programs that will provide detectives with additional resources needed to help solve domestic violence cases, sexual assault cases, cold case rape cases, and other violent crimes. Lastly, the Police Department is requesting $55,624 for various Community Engagement activities that will build trust between law enforcement and the community. The Police Department will use these monies to fund activities at the Police Athletic Activity League (SAPAAL) Center, the Gang Reduction and Intervention Partnership (GRIP) program, and for officers to attend Neighborhood Association meetings to collaborate with residents. Previous Council Approved Recommendations for Public Safety Initiatives ($880,000): The construction agreement with the County of Orange for Animal Care Services and New Shelter was approved by the City Council on April 19, 2016. The City's annual estimated costs, as provided by the County, totaled approximately $714,138. However, only 14 of the originally estimated 18 partner cities have agreed to participate. In anticipation of a revised estimate, staff recommends to fund the FY 2017-18 costs in the amount of $750,000 from available FY 2015-16 surplus funding. On May 19, 2015, the City Council approved a resolution financing the equipment, installation and partnership costs for the 800 MHz Communications System project. The third and final year of the one-time partnership costs were not financed at the time in order to reduce the City's interest cost related to the financing agreement. Staff recommends to fund the final portion of the payment due for FY 2017-18 by assigning available fund balance in the amount of $130,000. Council has previously considered financing the main component of the costs. 65F-3 Budget Surplus Allocation Plan December 20, 2016 Page 4 Formal Implementation of items previously approved by Council of the unanticipated Triple Flip ($5,600,000): On September 20, 2016, the City Council unanimously approved the reduction of the assessment from the Water Enterprise Fund to the General Fund by $2,388,082 in fiscal year 2015-2016. Therefore, staff recommends a one-time augmentation of $2,388,082 to continue to provide general fund support of community services and programs related to the reduction in the General Fund assessment which is assessed to the General Fund in the amount of $2,388,082. Also on September 20, 2016, the City Council unanimously approved the establishment of general fund support for Graffiti Abatement Services in the amount of $1,200,000 utilizing projected surplus monies. Additionally, Staff also recommends to utilize FY 2015-16 Surplus Funding to continue the Graffiti Abatement program and appropriate $1,200,000 within the General Fund. On September 6, 2016, the Mayor and City Council approved resolution Declaring a Public Health and Safety Crisis Related to the Homeless and Urging the County of Orange to take Immediate Action to Provide Services to the Homeless at the Santa Ana Bus Terminal which the County of Orange both owns and operates. In response to this resolution, on September 20, 2016, the City Council approved an appropriation adjustment to implement the Civic Center Safety and Security Program in the amount of $731,836 from available FY 2015-16 surplus funding. As noted above, on May 19, 2015, the City Council approved a resolution financing the equipment, installation and partnership costs for the 800 MHz Communications System project. The third and final year of the one-time partnership costs were not financed at the time in order to reduce the City's interest cost related to the financing agreement. Staff recommends to fund the final portion of the payment due for FY 2017-18 by assigning available fund balance in the amount of $1,280,082. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #1 - Community Safety, Objective 1 (modernize the Community Policing Philosophy to improve customer service, crime prevention and traffic/pedestrian/bicycle safety). Goal #2 — Youth, Education, Recreation, Objective #1 (ensure coordination among organizations serving Santa Ana's youth to optimize programs) and Objective #2 (expand youth programming). FISCAL IMPACT The appropriation adjustment will recognize and carry forward from Fiscal Year 2015-16 an available General Fund balance (account no. 01102002-50001) of $9,100,000 and appropriate to the Council Special Projects Fund (account no. 05005018-69011) and assigned general fund balances. Any amounts not assigned will remain in the unassigned account. 65F-4 Budget Surplus Allocation Plan December 20, 2016 Page 5 APPROVED AS TO FUNDS AND ACCOUNTS: Execute Director Finance and Management Services Agency EXHIBITS: 1. Public Safety Initiatives 2. Surplus Allocation Plan Items 65F-5 65F-6 FY 2015-16 Surplus - Public Safety Use of Funds YNOW1:M A. Front Line Police Services 58,398 1 Traffic Safety Education and Enforcement Plan 190,000 2 Prostitution Mitigation Programs -Overtime 135,200 3 Project Oriented Foot/Bike Neighborhood Program - 43,200 Overtime for four officers per week 42,627 4 Mounted Enforcement - Overtime funding for additional 21,600 deployments 13,773 5 Bike Trail / Creek Safety Enhancement Efforts - Overtime 90,000 for monthly patrols 184,945 6 Overtime for Front Line Patrol Services 1,000,000 Subtotal 1,480,000 B. Recruitment and Hiring 1 Agreement with Backgrounds Contractor 60,000 2 Additional Marketing/Advertising- Funding for second year 250,000 of Sensis program 3 Recruitment Website Enhancement- Funding for landing 25,000 page and professional optimization services 4 Recruitment Video - Funding to develop video 75,000 5 Lateral Recruitment Incentive 100,000 6 Overtime for Backgrounds- Investigations/Recruitment 70,000 Subtotal 580,000 C. Crime Prevention/Intervention 1 Violent Crime Reduction Plan (VCRP) -Overtime to 120,000 successfully investigate serious crimes more expeditiously 2 Sexual Assault Rapid Response Program — Overtime for 58,398 sexual assault investigations 14,760 3 Cold Case Rape Project— Overtime for investigations of 37,617 rape cases 10,000 4 Domestic Violence Immediate Impact Project—Overtime 42,627 for rapid investigation 5,000 5 Sex Registrant Verification Checks—Overtime to monitor 13,773 registered sex offenders 6 Auto Theft Assessment& Reduction Program — Overtime to 184,945 reduce auto thefts 7 Digital Crime Scene Replacement Program — Replacing 47,016 aging digital camera equipment Subtotal 504,376 D. Community Engagement 1 Neighborhood Association Meetings -Overtime to 14,760 collaborate with neighborhood associations 2 Photography Instructor - PAAL Center 10,000 3 Anaheim Angels RBI Baseball Program -PAAL Center 24,000 4 Guitar Replacements - PAAL Center 5,000 5 Gang Reduction Intervention Partnership (GRIP) -Overtime 1,864 to expand program training and school activities Subtotal 55,624 Total 2,620,000 65F-7 EXHIBIT 2 PROJECTED SURPLUS FOR FY 2015.16: $9,100,000 PROGRAM COUNCIL APPROVED AMOUNT Construction Costs of CountyAnimal Shelter $750,000 800 MHz Partnership Costs (fully fund) $130,000 RECOMMENDED SUBTOTAL: $880,000 OPTION A Skate Park $1,120,000 Park DevelopmentlJoint Use Agreement $1,500,000 For Consideration - Option A: $2,620,000 Public Safety lnfiatives: Prevention, Interventlon, &Enforcement General Fund Support of Programs &Services (due m weber transfer reduction) Graffiti Abatement (General Fund) Civic Center Homeless I Public & Employee Safety 800 MHz Partnership Costs (FY 17-18) For Consideration - Option B: $2,620,000 65F-8 OPTION TOTAL: $2,620,000 SUBTOTAL+ OPTION TOTAL: $3,500,000 9/2012016 $2,388,082 9120/2016 $1,200,000 912012016 $731,836 RECOMMENDED SUBTOTAL: $5.600.000 GRAND TOTAL: $9.1 CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: PUBLIC HEARING — 2017 DOWNTOWN BUSINESS IMPROVEMENT DISTRICT ASSESSMENT {STRATEGIC PLAN NO. 3,4F) CITY MIANA R CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ElOrdinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Conduct a public hearing to consider all protests regarding the intention to levy an assessment for 2017 for the Downtown Santa Ana Business Improvement District. Review any written protests filed prior to the close of the public hearing and determine whether they constitute a majority protest. 3. If the Council determines that no valid majority protest was lodged, adopt a resolution confirming the Assessment Report and levying the assessment for 2017. DISCUSSION On November 15, 2016, the City Council approved the 2017 Assessment Report and budget for the Downtown Santa Ana Business Improvement District (BID). In addition, the City Council adopted a resolution of Intention to Levy the 2017 assessment pursuant to California Streets and Highways Code section 35600 et seq. and scheduled the public hearing to consider protests to this action for its regular meeting of December 20, 2016. Business owners affected by the 2017 annual BID assessment may present written and/or oral protests during this public hearing. If written protests are received from business owners within the Downtown Santa Ana Business Improvement District, which will pay 50 percent or more of the proposed assessments and the protests are not withdrawn so as to reduce the number to less than 50 percent, the Council will be precluded from taking any action to levy the 2017 assessment. Any written protests filed and not withdrawn must be reviewed to determine if they meet certain qualifications; this review will include a comparison of names and business owners with official City records. If it is determined that less than a majority protest is filed, the adoption of the subject 75A-1 PH — 2017 BID Assessment December 20, 2016 Page 2 resolution will confirm the 2017 Assessment report for the BID and levy the assessments for 2017 (Exhibit 1). The 2017 Assessment Report includes a description of the BID assessment formula, where certain business classifications are charged 25%, 100% or 150% of their business license fee as their BID assessment. This formula was established in 1984 and remains unchanged. To ensure full understanding of how the assessment formula is applied to each business, attached as Exhibit 2 is a listing of all businesses which would be subject to the 2017 BID assessment showing which charge would apply to each business. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #3 - Economic Development, Objective #4 (Continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination), Strategy F (Partner with downtown business and merchant associations to program events that showcase restaurants, shopping and entertainment venues). FISCAL IMPACT There is no fiscal impact associated with this action. The City only serves as a pass-through for BID revenue in accordance with the Assessment Report and any approved operating agreements. Robes t�C. Co ei­­�— Deputy City Manager City Manager's Office Exhibit: 1. Resolution 2. List of Businesses Subject to Assessment 3. 2017 Assessment Report 75A-2 ROH — 12/20/16 RESOLUTION NO. 2016 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA LEVYING AN ASSESSMENT FOR THE DOWNTOWN SANTA ANA BUSINESS IMPROVEMENT DISTRICT FOR CALENDAR YEAR 2017 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1, The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. On February 6, 1984, the City Council, by Ordinance No. NS -1715, established the Downtown Santa Ana Business Improvement Area pursuant to California Streets and Highways Code Sections 36500, at seq. (the "BID Law"). B. On November 15, 2016, the City Council received the 2017 Annual Report for the Downtown Santa Ana Business Improvement District (the "Report'). C. On November 15, 2016, the City Council adopted Resolution 2016-xxx approving the Report and setting a public hearing for December 20, 2016, at which time protests could be made to the proposed levy of the 2017 annual assessment for the Downtown Santa Ana Business Improvement District (the "Annual Assessment'). D. On December 20, 2016, at the time and place called for in Resolution 2016-xxx, the City Council conducted a duly noticed public hearing at which written and oral protests to the proposed Annual Assessment were made and considered as provided in Streets and Highways Code section 36524 and 36525. E. Qualifying written protests constituting a majority of the owners of the businesses paying the Annual Assessment were not received at or before the conclusion of the public hearing. Section 2. The 2017 Assessment Report is hereby confirmed, and the levy of an assessment for the calendar year 2017 in accordance with Attachment B of the Report, a copy of which is attached hereto and incorporated herein by reference, is hereby approved. Resolution No. 2016 -XXX Page 1 of 3 X.HLB IT A -3 ADOPTED this _ day of 2016. APPROVED AS TO FORM: Sonia R. Carvalho; City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: Councilmembers Gouncilmembers Gouncilmembers Gouncilmembers Resolution No. 2016 -XXX Fuge 2 of 3 Miguel A. Pulido Mayor 75A-4 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 Date: Resolution No. 2016 -XXX Page 3 of 3 Clerk of the Council City of Santa Ana 75A-5 75A-6 DATA AS OF 11/30/2016 Intent to Levy BID Assessment List Weighted Protest Value Number Business Name Business Address BID Area BID Eligible I% of 100-A Total) 1 PEP BOYS, THE-MANNY/MOE/JACK 120 E 15T ST UNIT#A Yes Yes 0.750153% 2 PEP BOYS, THE -MAN NY/MOE/JACK 120 E IST ST UNIT#B Yes Yes 0.284084% 3 SANTA ANA EXPRESS CAR WASH 202 E 1ST ST Yes Yes 0A56899% 4 NUNEZ AUTO REPAIR 219 E 15T ST Yes Yes 0.123497% 5 PURPLE PENUMBRA LLC 224 E IST ST Yes Yes 0,018953% 6 AREA AUTOMOTIVE, LLC 224 E IST ST Yes Yes 0.1569197 7 MCDONALDS RESTAURANT 301 E IST ST Yes Yes 1.047891% 8 MCDONALD'S USA LLC 301 E IST ST Yes Yes 0.049521% 9 G 5 C PRESTON, LLC 302 E IST ST Yes Yes 0.019156% 10 DOWNTOWN GLASS 302 E 1STST Yes Yes 0.066028% 11 ROIC SANTA ANA, LLC (301, 307, 407, 419, 423, 431) 307 E 1ST ST Yes Yes 0.163950% 12 SPORT PLUS 307 E IST ST Yes Yes 0.260444% 13 GUAOALU PANA MEDICAL G ROUP 307 E IST ST UNIT#1C Yes Yes 0.094559% 14 T -MOBILE FINANCIAL LLC 307 E 15T ST UNIT#IS Yes Yes 0.597922% 15 T -MOBILE LEASING LLC 307 E IST ST UNIT# 1E Yes Yes 0.147952% 16 T -MOBILE WEST LLC 307 E IST ST UNIT#BE Yes Yes 0.259833% 17 T -MOBILE 307 E IST ST UNIT#BE Yes Yes 0.257999% 18 JUGOS ACAPU LCO 307 E IST ST UNIT#B Yes Yes 0.591197% 19 (KALI BOTANICA LATINA 312 E IST ST Yes Yes 0.061545% 20 TELEMAX TV 314 E IST ST Yes Yes 0.093540% 21 FOOD 4 LESS 382 315 E 1ST ST Yes Yes 6.322196% 22 ACE AUTO CARE, LLC. 401 E IST ST Yes I Yes 0.192378% 23 PAYLESS SHOE SOURCE#1011 407 E IST ST Yes Yes 0.322804% 24 DON ROBERTO JEWELERS 407 E 15T ST UNIT#2D Yes Yes 0.364378% 25 PROCESSING CENTER OF ORANGE COUNTY/VIGO 407 E IST ST UNIT#2E Yes Yes 0.101080% 26 ILUSION SANTA ANA 407 E IST ST UNIT#2F Yes Yes 0.1381707 27 TACO BELL#3434 411 E IST ST Yes Yes 0.611983% 28 MARSHALLS#1220 419 E1ST ST Yes Yes 1.277767% 29 MICRO COM PUTERS LLC 200W IST ST UNIT#104 Yes Yes 0.126350% 30 BROADWAY FAMILY DENTISTRY 210W IST ST Yes Yes 0.094559% 31 PROFESSIONAL SERVICES CENTER 210W IST ST Yes Yes 0.051763% 32 MOHALE, MICHA 210 W IST ST Yes Yes 0.051559% 33 GONZALEZ AUTO INSURANCE SVCS 210 W 15T ST Yes I Yes 0.102710% 34 NUTRICION TOTAL 210 W 15T ST UNIT#107 Yes Yes 0.159568% 35 OMALEXA'S BEAUTY SALON 21D 15T ST UNIT#108 Yes Yes 0.071734% 36 MOBIUS PRINT&SIGNS 210W 1ST ST UNIT#109 Yes Yes 0.177909% 37 ANTOJITOS CLEMENTE 210W IST ST UNIT#111 Yes Yes 0.162625% 38 COMERCIAL NUTRITION MEXICANA 210W IST ST UNIT#112-11 Yes Yes 0.077644% 39 BEAUTY G LAM ACADEMY 210W 1ST ST UNIT#212 Yes Yes 0.087630% 40 TU CENTRO MOBILE 220 W IST ST UNIT# 101 Yes Yes 0.130222% 41 ADOBE MEDICAL GROUP, INC. 220WISTSTUMT#102 Yes Yes 0.111677% 42 828 PHO 220 W IST ST UNIT# 103 Yes Yes 0.204810% 43 BROADWAY ARCO/AFGHANI FAMILY 302 W IST ST Yes Yes 0.910944% 44 MYERS, GARY QL101 S BIRCH ST) 310 W 15T ST Yes I Yes 0.008763% 45 CASTELLON, ALFREDO 312W 1ST ST Yes Yes 0.030161% 46 SANTAANA SENIOR HOUSING LP 401W IST ST Yes Yes 0.229570% 47 TEKCHANOANI, NARAIN (#F201) 601 W 1ST ST Yes Yes 0.006521% 48 GONZALEZ, ALFON50/ALICIA(F105) 601W 1ST ST Yes Yes 0.006521% 49 MOHAMMAD, MOBIN/SINGH, DAVINDER 601 W ISTST UNIT# F101 Yes Yes 0.006521% 50 WU, HONG 601 W 1STST UNIT# F204 Yes Yes 0.006521% 51 KIMBERLY ANNE LLC 611 W IST ST UNIT#E102 Yes Yes 0.006521% 52 QIAO, LI Q (A109/E103) 611 W 1ST ST UNIT# E103 Yes Yes 0.006521% 53 SADEG H I, MITRA&AALAM 611 W IST ST UN IT#E202 Yes Yes 0.006521% 54 AN 0 RA, NISH O REV 611 W 15T ST UN IT#E203 Yes Yes 0.006521% 55 WU, HONG 611 W IST ST UNIT#E204 Yes Yes 0.006521% 56 DAMANIA, MAHEK 611W IST ST UNIT#E205 Yes Yes 0.006521% 57 GAO, QUANYIN&YANG, ZUIRONG 621W 15T ST UNIT#D102 Yes Yes 0.006521% 58 GO PRINTING AND SHIPPING CENTER 104W 2ND ST Yes Yes 0.096597% 59 RUNNING WITH SCISSORS HAIR STUDIO 106W 2ND ST Yes Yes 0.100265% 60 JAY'S CATERING, INC. 207 W 2ND ST UNIT#A Yes Yes 0.119829% 61 ROBBINS NESTWINE BAR &BISTRO 207 W 2ND ST UNIT#B Yes Yes 0.077644% 62 LOLA GASPAR 211 W 2ND ST Yes Yes 0.567964% 63 THE COURTATARTISTS VILLAGE 301 W 2ND ST Yes Yes 0.225087% 64 5VTTUTORING SERVICES 303 W 2ND 5T UNIT#212 Yes Yes 0.070512% 65 C -LEVEL SCENARIOS 301 W 2ND ST UNIT#239 Yes Yes 0.060322% 66 IN STYLE SALON 103 E 3RD ST Yes Yes 0.088445% 67 THE POINTE SHOP 200 E 3RD ST Yes I Yes 0.188914% EXHIBIT 2 1 75A-7 DATAAS OF 11/3012016 Intent to Levy BID Assessment List EXHIBIT 2 Weighted Protest Value Number Business Name Business Address BID Area BID Eligible I% of 100% Total) 68 BUTTERFIELD, LEE C/FESTIVAL 230 E3RD ST Yes Yes 0.023945% 69 TAPIA, CANDELARIO 216 E3RD ST Yes Yes 0.013043% 70 FESTIVAL HALL 220 E 3RD ST Yes Yes 0.214592% 71 ROMYS BEAUTY SALON & SUPPLY IDS W 3RD ST Yes Yes 0.061545% 72 COMPAX 170 W 3RD ST Yes Yes 0.051763% 73 CALIFORNIA TEAM REALTY 190W 3RD ST Yes Yes 0.051763% 74 DOWNTOWN SUGAR 218 W 3RD ST Yes Yes 0.126350% 75 SANDYS BEAUTY SALON 305W 3RD ST Yes Yes 0.065621% 76 DOWNTOWN DONUTS, LLC 307 W 3RD ST - Yes Yes 0.091706% 77 EQEKO CAFE 309 W 3RD ST Yes Yes 0.174852% 78 MY OFFICE 310W 3RD ST Yes Yes 0.058284% 79 ACE MESSENGER& ATTORNEY SERVICE 310W 3RD ST Yes Yes 0.085592% 80 HARRIS TAYLOR MANAGEMENT INC 315W 3RD ST Yes Yes 0.178928% 81 EAST SECOND STREET LLC 315 W 3RD ST Yes Yes 0.116568% 82 LAW OFFICES OF LOIDA D TELLEZ 315 W 3RD ST Yes Yes 0.094559% 83 LAW OFFICES OF CHRISTOPHER P. RUIZ 315 W 3RD ST Yes Yes 0.137762% 84 WMC INSURANCE SERVICES 322W 3RD ST Yes Yes 0.558794% 85 PMN INSURANCE SERVICES, LLC. 322 W 3RD ST Yes Yes 0.165478% 86 BETA HOLDINGS LLC 322 W 3RD ST Yes Yes 0.027614% 87 PACIFIC DIAMON D INSURANCE SERVICES, LLC. 322W 3RD ST Yes Yes 0.088445% 88 C&S INTERGRATED INSURANCE SERVICES, INC. 322W 3RDST Yes Yes 0.101488% 89 HAKIMI, FARZIN 600 W 3RD ST UNIT#A103 Yes Yes 0.006521% 90 ONTIVEROS, ANGELICA 600 W 3RD ST UNIT#A104 Yes Yes 0.006521% 91 NGUYEN, JULIE 600 W 3RD ST UNIT#A-1D5 Yes Yes 0.006521% 92 NGUYEN, TYLER J. 600 W 3RD ST UNIT#A106 Yes Yes 0.006521% 93 OLAR INVESTMENTS 600 W 3RD ST UNIT#A113 Yes Yes 0.006521% 94 CERRUTI-TIPITTO, PATRICIA 600 W 3RD ST UNIT#A118 Yes Yes 0.006521% 95 1 K LVICTORVILLE LLC 600 W 3RD ST UNIT#,0210 Yes Yes 0.006521% 96 MAHTANI 2011 600 W 3RD ST UNIT#,0212 Yes Yes 0.0065215. 97 LABRA, CLAUDIO(#A216) 600 W 3RD ST UNIT#A216 Yes Yes 0.006521% 98 FTI HOLDINGS, INC. (#A218/BID9/B116/B306) 600 W 3RD ST UNIT#,0218 Yes Yes 0.009884% 99 TEKCHANDAM, NARAIN (48104) 600 W 3RD ST IL IT#A219 Yes Yes 0.006521% 100 CORDOVA, MARIANO(#A219) 600 W 3RD ST UNIT#A219 Yes Yes 0.006521% 101 KATO, MAKOTO MARK (#201-B) 600 W 3RD ST UNIT#A219 Yes Yes 0.006521% 102 TOBINA LLC 600 W 3RD ST UNIT#,0302 Yes Yes 0.006521% 103 PHAM, THOMAS 600 W 3RD ST UNIT#,0305 Yes Yes 0.006521% 104 CREEK ROSEDALE LLC 600 W 3RD ST UNIT#A306 Yes Yes 0.006521% 105 TUCKER, GARY 600 W 3RD ST UNIT#A308 Yes Yes 0.006521% 106 DESAI M V(#A310/C205) 600 W 3RD ST UNIT#A310 Yes Yes 0.007642% 107 HONLYNX CAPITAL, LLC 600 W 3RD ST UNITS A311 Yes Yes 0.006521% 108 HECTOR &ELVA CORTES 600 W 3RD ST UNIT#A313 Yes Yes 0.006521% 109 MATINPOUR FAMILYTRUST 600 W 3RD ST UNIT#A318 Yes Yes 0.006521% 110 PHAN, QUAN 600 W 3RD ST UNIT# 8305 Yes Yes 0.006521% 111 SAN JUAN INVESTMENT CO., LLC (8106/8212) 600 W 3RD ST UNIT# 8306 Yes Yes 0.007645 112 JIANG, YIHAI/SHI, RU 600 W 3RD ST UNIT# 8308 Yes Yes 0.006521% 113 CHAHNOUI, MOHAMMED GHASSEMI 600 W 3RD ST UNIT# 8313 Yes Yes 0.006521% 114 HITCHENS, DEAN AND MARIA 600 W 3RD ST UNIT#8314 Yes Yes 0.006521% 115 WU, HONG(A122/A304/B208/C302) 600 W 3RD ST UNIT#8208 Yes Yes 0.009884% 116 HAIDER, RICHARD &SAM 600 W SKID ST UNIT# 8210 Yes Yes 0.006521% 117 YANG, JENNY &YINGER, QIANG 600 W 3RD ST UNIT# B213 Yes Yes 0.006521% 118 YANG, TONY/HOU, NANCY 600 W 3RD ST UNIT# B217 Yes Yes 0.006521% 119 PACIFIC HEIGHT HOLDING CO., LLC 600 W 3RD ST UNIT# B221 Yes Yes 0.006521% 120 HONG, ROBERTO 600 W 3RD ST UNIT# B301 Yes Yes 0.006521% 121 NGUYEN, VIET& VO, YVONNE 600 W 3RD ST UNIT# 8302 Yes Yes 0.006521% 122 DETMERS, ERNE5T1&MORALES,V 600 W 3RD ST UNIT#B304 Yes Yes 0.006521% 123 TESSER, PABLO JOSE 600 W 3RD ST UNIT# B312 Yes Yes 0.006525 124 SHEN, EDWARDTTRUSTEE 6DOW3RDSTUNIT43314 Yes Yes 0.007642% 125 TAING,WILLIAM 600W3RDSTUNIT#C101 Yes Yes 0.006521% 126 MINI MAXGROUPLLC 60OW3RDSTUNIT#0104 Yes Yes 0,006521% 127 HON LYNX CAPITAL LLC 60OW3RDSTUNIT#0202 Yes Yes 0.006521% 128 JIANG, YIHAI 500 W 3RD ST UNIT#C206 Yes Yes 0.006521% 129 KHORRAM, SHAN IA/JAFE R KHAN I, MEHRI 600 W 3RD ST UNIT#C207 Yes as 0.006521% 130 AZVES LLC 600 W 3RD ST UNIT# C304 Yes Yes 0.006521% 131 PRIMAVERAS BRIDAL 102 E 4TH ST Yes Yes 0.077644% 132 CHAPION FINACIAL SERVICES 102 E4TH ST Yes Yes 0.086000% 133 ACAPULCO TRAVEL 102 E4TH ST Yes Yes 0.152843% 134 YANEZ, RAUL 102 E4TH ST UNIT#2ND FL Yes Yes 0.019054% 2 75A-8 DATA AS OF II/30/2016 EXHIBIT 2 Intent to Levy BID Assessment List Number Business Name Business Address BID Area BID Eligible Weighted Protest Value I% Of 100% Total) 135 DENTAL4 102 E 4TH ST UNIT#2ND FL Yes Yes 0.405543% 136 JOYERIAACAPULCO 102 E 4TH ST UNIT#2ND FL Yes Yes 0.0784595. 137 VALNER SERVICES 102 E 4TH ST UNIT# 2N D FL Yes Yes 0.110047% 138 VALNER INSURANCE SERVICES, INC. 102 E4TH ST UNIT#2ND FL Yes Yes 0.0982275i 139 RANCHO DE MENDOZA 104 E4TH ST Yes Yes 0.452415% 140 FOIGELMAN, NORBERT 104 E4TH ST Yes Yes 0.012941% 141 RASPADOS EL SUR 104 E 4TH ST UNIT# B -PE Yes Yes 0.2579995Z 142 FRUTAS LA PLACITA 104 E 4TH ST UNIT# PE Yes Yes 0.257999% 143 RHODES JEWELRY &LOAN 106 E4TH ST Yes Yes 0.51599857 144 NANA FASHION 108 E4TH ST Yes Yes 0.219482% 145 YANEZ, RAUL&GILDA 108 E4TH ST Yes Yes 0.027410% 146 HOLIDAY TRAVEL &TOURS 110 E4TH ST Yes Yes 0.088038% 147 ANTIQUE TIME 110 E4TH ST Yes Yes 0.052986% 148 NANA FASHION 110 E 4TH ST Yes Yes 0.166293% 149 STUDIO NAILS - ERENDIRA GAZGA 110 E4TH ST UNIT#203 Yes Yes 0.052170% 150 IRMA SALON 110 E4TH ST UNIT#205 Yes Yes 0.065621% 151 VERONICA'S BRIDAL 110 E4TH ST UNIT#207 Yes Yes 0.091706% 152 R & Q ENTERPRISES, LLL 112 E 4TH ST Yes Yes 0.0163035 153 IA ZAPATERIA MEXICO 112 E4TH ST Yes Yes 0.213369% 154 START COMPUTER REPAIR 112 E 4TH ST UNIT#200 Yes Yes 0.056246% 155 SEGU RA JEWELRY REPAIR 112 E 4TH ST UNIT#200 Yes Yes 0.065621% 156 E.C. SERVICES 112 E 4TH ST UNIT# 200 Yes Yes 0.055431% 157 TEIAS FABRIC 114 E 4TH ST Yes Yes 0.014065 158 TELAS FABRIC 114 E 4TH ST Yes Yes 0.084777% 159 NINO'S BRIDAL COUTURE 114 E4TH ST Yes Yes 0.077644% 160 CW CELULLAR, INC 116 E 4TH ST Yes Yes 0.095782% 161 ALVAREZ CH ECJ( CASH ING 116 E4TH ST Yes Yes 0.051763% 162 BAN DOLERO WESTERN WEAR, INC. 116 E4TH ST Yes Yes 0.110047% 163 CEBALLOS, JOSE/AURORA 116 E 4TH ST Yes Yes 0.019054% 164 E.S. DOCUMENT SERVICES 116 E 4TH ST UNIT#F Yes Yes 0.061137% 165 RUIZ PAWN SHOP 118 E4TH ST Yes Yes 0.515998% 166 BEAUTY SALON NUEVO GUADALAJARA 1181/2 E4TH ST Yes Yes 0.128796% 167 YANEZ, RAUL (318N BUSH) 120 E 4TH ST Yes Yes 0.011820% 168 ELVAQUERO 120 E4TH ST Yes Yes 0.206032% 169 BLENDS 200 E4TH ST Yes Yes 0.200530% 170 LUNCHBOX BY PLAYGROUND 201 E4TH ST Yes Yes 0.751376% 171 4th STREET MARKET 201 E 4TH ST Yes Yes 0.077644% 172 EAT GOOD FOOD MAR LLL 201 E 4TH ST Yes Yes 0.314245% 173 DAWG POUND SAUSAGE & CATERING 201 E4TH ST Yes Yes 0.114665% 174 B IANCH AN D SAUTE CATERING 201 E4TH ST Yes Yes D.114665% 175 HERITAGE ROASTING COMPANY 201 E4TH ST Yes Yes 0.080090% 176 BEE HEALTHY MEALS 2D1 E4TH ST Yes Yes 0.114665% 177 SHORT LIST FOODS LLC 2D1 E 4TH ST Yes Yes 0.077644% 178 CONTRA COFFEE &TEA 201 E4TH ST Yes Yes 0.084369% 179 SALSA BANDOLERA 201E 4TH ST Yes I Yes 0.077644% 180 MODEL MEALS 201 E4TH ST Yes Yes 0.114665% 181 THREE BEARS BAKE AT HOME 201 E4TH ST Yes Yes 0.039739% 182 ALTA BAJA MARKET 201 E 4TH ST UNIT# 101 Yes Yes 0.155288% 183 ELECTRIC CITY BUTCHER 201 E 4TH ST UNIT# 104 Yes Yes 0.250051% 184 CHUNK -N -CHIP 201 E4TH ST UNIT#107 Yes Yes 0.141227% 185 FIESTA MARKETPLACE PARTNERS 201 E 4TH ST UN T# 109 Yes Yes 0.057265% 186 THE STOCKYARD SANDWICH COMPANY 201 E 4TH ST UN IT#116 Yes Yes 0.077644% 187 FRONT PORCH POPS/TORCH SMORF 201 E 4TH ST UNIT#121 Yes Yes 0.077644% 188 RADICAL BOTANICALS 201 E 4TH ST UNIT# 121 Yes Yes 0.1699615'. 189 11NNY'S PIZZERIA 201 E 4TH ST UNIT#126 Yes Yes 0.077644% 190 PIG PEN DELICACY 201 E 4TH ST UNIT# 129 Yes Yes 0.077644% 191 PORTOLA COFFEE LAB 203 E 4TH ST UNIT#132 Yes Yes 0.077644% 192 KTCHN DTSA 201 E4TH ST UNIT# 136 Yes Yes 0.248217% 193 DOS CHINOS 201 E 4TH ST UNIT# 139 Yes Yes 0.077644% 194 RIVAS FOOD 202 E 4TH ST UNIT# PE Yes Yes 0.2579995 195 CIA SANTA ANA LLC 204 E 4TH ST UNIT# B Yes Yes 0.077644% 196 BOBBY'S SKIN CARE CLINIC 204 E 4TH 5T UNIT# D Yes Yes 0.075810% 197 CLUB DE NUTRICION DE HERBALIFE 204 E 4TH ST UNIT#G Yes Yes 0.100265% 198 COLORWAYSTUDIDS 204 E 4TH ST UNIT#N Yes Yes 0.080294% 199 FOURTH DTSA 210 E4TH ST UNIT#A Yes Yes 0.154677% 200 PHOU NSACK CHANTHAPANY 216 E4TH ST Yes Yes 0.015692% 201 AL'SSHOP 216E4TH5T Yes Yes 0.210923% 3 75A-9 DATA AS OF 11/30/2016 EXHIBIT 2 Intent to Levy BID Assessment List Weighted Protest Value Hufrnnw Addr- BID Area BID Elielhle (% of 100%Token 202 TOPAZ I EWELRY REPAI R 216 E 4TH ST UNIIB Yes Yes 0.064805% 203 STYLE WORLD 219 E4TH ST Yes Yes 0.419401% 204 FAINBARG, ALLAN TR 219 E 4TH ST Yes Yes 0.033116% 205 4TH STREET MARKET 219 E4TH ST Yes Yes 0.086000% 206 RIVAS FOOD 219 E 4TH ST UNIT#PE Yes Yes 0.257999% 207 THE PLAYGROUND 220 E4TH ST Yes Yes 1.019157% 208 PATTERN BOUTIQUE 220 E 4TH ST UNIT# 101A Yes Yes 0.10087697 209 CARRETONES FIESTA 220 E 4TH ST UNIT#PASEO Yes Yes 0.102099% 210 RANGEL, RAYMOND (300-308( 300 E4TH ST Yes Yes 0.0285317 211 FRUTTI FRESNO 300 E 4TH ST UNIT#101 Yes Yes 0.114665% 212 CASA CAMACHO 300 E 4TH ST UNIT#102 Yes Yes D.226208% 213 LA PIZZA LOCA, INC 300 E 4TH ST UNIT# 103 Yes Yes 0.261667% 214 R&RSPORTWEAR 300 E 4TH ST UNIT#106 Yes Yes 0.22437391. 215 LA FIESTA SHOES LLC/BOOST MOBILE 300 E 4TH ST UNIT#107 yrs Yes 0.317913% 216 TAQUERIAS GUADALAJARA REAL MEXICAN FOOD INC 305 E4TH ST Yes Yes 0.5850837 217 FIESTA MARKETPLACE PARTNERS 305 E 4TH ST Yes Yes 0.032505% 218 MARCAS GALLERY 305 E 4TH ST UNIT#103 Yes Yes 0.077644% 219 M. LOVEWELL LLC 305 E 4TH ST UNIT#104 Yes Yes 0.061952% 220 KIYOMIZU LLC 305 E 4TH ST UNIT#105 Yes Yes 0.114665% 221 WURSTHAUS 305 E 4TH ST UNIT#106 Yes Yes 0.410842% 222 NATIVE SON ALEHOUSE 305 E 4TH ST UNIT#200 Yes Yes 0.416956% 223 QUERETARO CASTING & DESIGNER 312 E4TH ST Yes Yes 0.116772% 224 CATANO INSURANCE BROKERS 312 E 4TH ST UNIT#A Yes Yes 0.086407% 225 MEXICANATRAVEL 312 E 4TH ST UNIT#A Yes Yes 0.092113% 226 AB COMPUTERS 312 E 4TH ST UNIT#B Yes Yes 0.095985% 227 CEBALLOS, JOSE 314 E4TH ST Yes Yes 0.019462% 228 FIESTA INCOME TAX&NOTARY 314 E 4TH ST UNIT#B Yes Yes 0.052986% 229 99 CENT AND MORE 314 E 4TH ST UNIT#B Yes Yes 0.116772% 230 CHARLIES TATTOO SU PPLIES/BODY JEWELRY/BOOTS 316 E4TH ST Yes Yes 0.077644% 231 FIESTA MARKETPLACE PARTNERS II 316 E 4TH ST Yes Yes 0.0338297 232 DAME ELEGANTE 318 E 4TH ST Yes Yes 0.077644% 233 AMERICAN BARBERSHOP DTSA/ AMERICAN BARBERSHOP 320E4THSTUNIT4A Yes Yes 0.051763% 234 AGUILAR,JONATHAN 320E4THSTUNIT#A Yes Yes 0.068474% 235 MEGA INDUSTRIES INC 400 E4TH ST Yes Yes 0.321582% 236 1HR SCREEN REPAIR 400 E 4TH ST Yes Yes 0.053801% 237 NORTHGATE MARKET 48 409 E4TH ST Yes Yes 4.670269% 238 GON-REV LP 409 E 4TH ST Yes Yes 0.051865% 239 NORTHGATE FINANCIAL 409 E 4TH ST Yes Yes 0.246179% 240 MERCADO, LYDIA MAE 410 E 4TH ST Yes Yes 0.006521% 241 NGHIEM, MINH THU 450 E 4TH ST UNIT#137 Yes Yes 0.006521% 242 SAN JUAN INVESTMENT CO. LLC (133/134/141/406/433) 450 E 4TH ST UNIT#141 Yes Yes 0.011005% 243 MAHTAN 12011(#120/146/201) 450 E 4TH ST UNIT#146 Yes Yes 0.008763% 244 HEATON, DAVID &JAN 450 E 4TH ST UNIT#149 Yes Yes 0.0065217 245 TAN, PAUL &JOYCE 450 E 4TH ST UNIT#237 Yes Yes 0.006521% 246 NGUYEN, HONORA 450 E 4TH ST UNIT#240 Yes Yes 0.006521% 247 EONGRACIA LLC 450 E 4TH ST UNIT4243 Yes Yes 0.006521% 248 WIUUAMS,JOHN 450 E 4TH ST UNIT#245 Yes Yes 0.006521% 249 LEE, DR. YEE LEAN 450 E 4TH ST UNIT#247 Yes Yes 0.006521% 250 SHARMA, SUDHEEP 450 E 4TH ST UNIT#337 Yes Yes 0.006521% 251 501.511 ISIS LLC 450 E 4TH ST UNIT#338 Yes Yes 0.0066237 252 PANDIT, EVELINA 450 E 4TH ST UNIT#348 Yes Yes 0.006521% 253 JAFARI MOJARROD, ELHAM LIVING TRUST 450 E 4TH ST UNIT#438 Yes Yes 0.006521% 254 OROZCQ JESUS 450 E 4TH ST UNIT#439 Yes Yes 0.006521% 255 WAYY, BRIAN 450 E 4TH ST UNIT#441 Yes Yes 0.006521% 256 HERNANDEZ, CARMEN 450 E 4TH ST UN IT#446 Yes Yes 0.030161% 257 1 K LVICTORVILLE LLC 450 E 4TH ST UN IT#449 Yes Yes 0.006521% 258 ZUKERMAN, RIVKA 101 W 4TH ST Yes Yes 0.049623% 259 THE IRVINE TRAVEL CO., INC. 101 W 4TH ST UNIT#200 Yes Yes 0.051763% 260 WORLDVIEWTRAVEL 101 W 4TH ST UNIT#400 Yes Yes 0.986754% 261 FRUTAS LA PLACITA 101 W 4TH 5T UNIT# PE Yes Yes 0.257999% 262 DORA ORLANDI VALUTA SANTA ANA 102 W 4TH ST Yes Yes 1 0.078663% 263 G LO SAL ENVI RON M E NTAL N ETWORK 106W 4TH ST Yes Yes 0.059507% 264 CORNERSTONE STUDIOS INC 106 W 4TH ST Yes Yes 0.189118% 265 MILLER-BURG-DUPONT, INC.(102-106) 106 W 4TH ST Yes Yes 0.051559% 266 SARAKKI ASSOCIATES, INC. 106 W 4TH ST UNIT# 511 Yes Yes 0.094559% 267 P & 0 ENTERPRISES, LLC 108 W 4TH STVes Ves 0.015488% 268 CHA, WON 108 W 4TH ST Ves Yes 0.012941% 4 75A-10 DATA AS OF 11/3012016 Intent to Levy BID Assessment List EXHIBIT 2 Weighted Protest Value Number Business Name Business Address BID Area BID Eligible (% of 100% Total) 269 DIVA'S FASHION 108 W 4TH ST Yes Yes 0.135113% 270 TNT TOU RS&TRAVEL 108W 4TH ST Yes Yes 0.079478% 271 CONTIN ENTAL HALL 108 W 4TH ST UNIT#A Yes Yes 0.055023% 272 BUFFCO INVESTMENTS, LLC. 109 W 4TH ST Yes Yes 0,035663% 273 COLLEEN O'HARA'S BEAUTY ACADEMY 109 W 4TH ST UNIT#B Yes Yes 0.313022% 274 IA MODA 110 W 4TH ST Yes Yes 0.191156% 275 CAPILLA IAS ROSAS WEDDING CHPL 110 W 4TH ST Yes Yes 0.152843% 276 SOUTHWEST FAMILY 2004 TRUST 110 W4TH ST Yes Yes 0.019258% 277 BANDOLERO 112 W 4TH ST Yes Yes 0,134502% 278 CHANTHAPANYA,PHOUNSACK(112-116 112 W 4TH ST Yes Yes 0.035765% 279 YCU LLC 113 W 4TH ST Yes Yes 0.014163% 280 HISPANOAMERICAN SERVICES 113 W 4TH ST UNIT#A Yes Yes 0.073772% 281 SERVI CENTRO 114 W 4TH ST Yes Yes 0,059914% 282 CASSANDRA'S BRIDAL BANQUETS 114 W 4TH ST Yes Yes 0.108213% 283 WDJRC, LLC 115 W 4TH ST Yes Yes 0.015998% 284 CENTRO LATINO 116 W 4TH ST Yes Yes 0.057061% 285 VALENCIA I EWELRY(202-204) 116W 4TH ST Yes Yes 1,096190% 286 VALENCIA, MEDARDO & VICTORIA 116W 4TH ST Yes Yes 0.034339% 287 PRODUCTOS VIENESTAR HERBALIFE 116 W 4TH ST UNIT# 12 Yes Yes 0.0855925i 288 ALPHA WIRELESS SERVICES 116 W 4TH ST UNIT# 14 Yes Yes 0.082535% 289 JALPHA INCOME TAX& FINANCIAL SERVICES 116 W 4TH ST UNIT#14 Yes Yes 0.068474% 290 REVOLUTION BEAUTY SALON 116 W 4TH ST UNIT#7 Yes Yes 0.051763% 291 VALENCIA & ASSOCIATES APC 116 W 4TH ST UNIT#A Yes Yes 0.215203% 292 FAINBARG V LP 117 W 4TH ST Yes Yes 0.038211% 293 KID AVENUE 117 W 4TH ST UNIT#102 Yes Yes 0.155900% 294 YUM RESTAURANT SERVICES GROUP, LLC 117 W 4TH ST UNIT#200 Yes Yes 0.518036% 295 SANTA ANA SALON 118 W4TH ST Yes Yes 0,088445% 296 FRUTAS IA PLACITA 118 W 4TH ST UNIT# PE Yes Yes 0,257999% 297 DON ROBERTO JEWELERS 120W 4TH ST Yes Yes 0,537396% 298 BMA INVESTMENT LLC 120W 4TH ST Yes Yes 0.034644% 299 FALLAS PAREDES, #105 201 W 4TH ST Yes Yes 1.055228% 300 FANFARE & FRIEDMAN I, LP 201 W 4TH ST Yes Yes 0.040758% 301 COCFELES HUERTA 201 W 4TH ST UNIT# PE Yes I Yes 0.257999% 302 CM PROPERTIES (202-212) 202 W 4TH ST Yes Yes 0.016813% 303 HOPPER 8, BURR 202 W 4TH ST Yes Yes 0.114665% 304 D & D SNACK FOOD 202 W 4TH ST UNIT# PE Yes Yes 0.257999% 305 RHOMBUS INDUSTRIES 206 W 4TH ST UNIT#201 Yes Yes 0.217648% 306 GRACE'S ENTERPRISES 206 W 4TH ST UNIT#203 Yes Yes 0.081516% 307 A.L. DRAFTING SERVICES 206 W 4TH ST UNIT#217 Yes Yes 0.0578777 308 POMADE, INC. 206 W 4TH ST UNIT# 22D Yes Yes 0.077644% 309 PRINCESS BRIDAL 208 W 4TH ST Yes Yes 0.096597% 310 N & M CORP. BET. PLAN ONE (209-211) 209 W 4TH 5T Yes Yes 0.032301% 311 FIESTA JUICE 209 W 4TH ST Yes Yes 0.217037% 312 LEMUS'SHOP 209 W 4TH ST UNIT#A Yes Yes 0.077644% 313 MI CELLULAR 209 W 4TH ST UNIT#A Yes Yes 0.091706% 314 J & F CALIFORNIA MULTISERVICES 209 W 4TH ST UNIT# 0 Yes Yes 0.057877% 315 CHRISTIAN& MARISOL FLOWERS &GIFT SHOP 209 W 4TH ST UNIT#G Yes Yes 0,079478% 316 IAS ILUSIONES BRIDAL 211 W 4TH ST Yes Yes O.D77644% 317 DOLEX DOLLAR EXPRESS INC 211 W 4TH ST Yes Yes 0.080701% 318 JESSICA'S BRIDAL 212 W 4TH ST Yes Yes 0.077644% 319 ANGEIS 213 W 4TH ST Yes Yes 0.180966% 320 DUEL, EBRAHIM M.D. - INC 214 W 4TH ST Yes Yes 0,026187% 321 SHELBY'S BRIDAL 214 W 4TH ST Yes Yes 0,077644% 322 ROBBINS, ROSALIND K (215-217) 215 W 4TH ST Yes Yes 0.018749% 323 LA PARISINA 215 W 4TH ST Yes Yes 0.169961% 324 CASTROPRODUCFION 218 W 4TH ST Yes Yes 0.077644% 325 HISPANOAMERICA JEWELERS (102) 218 W 4TH ST UNIT#A Yes Yes 0.139393% 326 VIANNEY CATALOG LLC 219 W 4TH ST Yes Yes 0.192582% 327 219 W 4TH ST TRUST 219 W 4TH ST Yes Yes 0,012941% 328 HWANG, THOMAS D. 220 W 4TH ST Yes Yes 0,017526% 329 EUAS, JOSEPH 221 W4TH ST Yes Yes 0.017526% 330 HOLIDAY TRAVEL &TOURS 11 222 W4TH ST Yes Yes 0.090483% 331 BOTANICA LATINA 222 W 4TH ST Yes Yes 0.105156% 332 ALFA INSURANCE SERVICES 222 W 4TH ST UNIT#A Yes Yes 0.062768% 333 CHAPALA'S BEAUTYSALON 222 W4TH ST UNIT#A Yes Yes 0.052170% 334 FRUTAS ACAPULCO 222 W 4TH ST UNIT# PE Yes Yes 0.257999% 335 TERESA'S JEWELERS 223 W 4TH ST Yes Yes 0.438354% 5 75A-11 DATA AS OF 11/3012016 Intent to Levy BID Assessment List EXHIBIT 2 Weighted Protest Value NumFnr B -i -Name Business Address BID Area BID Eligible (Y, of 100% Total) 336 VALLEJO, ANTONIO(223 W 4TH ST & 409 N BROADWAY STI 223 W 4TH ST Yes Yes 0.036275% 337 STARBUCKS COFFEE #8941 301 W 4TH ST Yes Yes 0.568576% 338 PHILLIPS HU70N PARTNERS LLC 301 W 4TH ST Yes Yes 0.038007% 339 LEDWIN,BRUNO & RAQUEL(302-306) 302 W4TH ST Yes Yes 0.025066% 340 RIA FINANCIAL SERVICES/ RIA ENVIOS DE DINERO 362 W4TH ST Yes Yes 0.145914% 341 PANAMERICANA TRAVEL 4665 302 W4TH ST Yes Yes 0.083554% 342 CARTER BOWL 302 W 4111 ST UNIT# BE Yes Yes 0.257999% 343 ANA'S EVERYTHING STORE 304 W 4TH ST Yes Yes 0.092929% 344 AKORN ENTERTAINMENT LLC 305 W 4TH ST Yes Yes 0.224170% 345 LAURA'S PLACE 306 W 4TH ST Yes Yes 0.088038% 346 MOS DISTRIBUTORS LLC/KEBAB PLACE 306 W 4TH ST Yes I Yes 0.151009% 347 TODD SERVICES 308 W 4TH ST Yes Yes 0.057061% 348 HUGO'S BEAUTY SALON 3081/2 W 4TH ST Yes Yes 0.075810% 349 RSG, INC. 309 W 4TH ST Yes Yes 0.608111% 350 THE GOOD BEER COMPANY, INC. 309 W4TH 5T Yes Yes 0.154881% 351 NIELSEN & ASSOCIATES 310 W 4TH ST Yes Yes 0.223355% 352 CHA, WON (310-318) 312 W 4TH ST Yes Yes 0.017220% 353 DOWNTOWN J&L 312 W 4TH ST Yes Yes 0.066028% 354 U.S. FINANCING 314 W 4TH ST Yes Yes 0.091298% 355 DOWNTOWN JEWELRY AND LOAN 314 W 4TH ST Yes Yes 0.515998% 356 MONTE DE PIEDAD 318 W 4TH ST Yes Yes 0.170573% 357 CM PROPERTIES (322-326) 322 W 4TH ST Yes I Yes 0.014571% 358 CAFE CAI -ACAS: CONTERMPORARY MEXICAN CAFETERIA 324 W 4TH ST UNIT# B Yes Yes 0.268392% 359 THE BARREL ROOM 324 W 4TH ST UNIT# B Yes Yes 0.174852% 360 GUNTHER'S 324 W 4TH ST UNIT#E Yes Yes 0.233544% 361 RASPADOS ESTILO JALISCO 324 W 4TH ST UNIT# PE Yes Yes 0.257999% 362 FLEENOR'S RESTAURANT, LLC 400 W 4TH ST UNIT#A Yes Yes 0.077644% 363 BARBERIA EL CATKIN, INC. 400 W 4TH ST UNIT# B Yes Yes 0.051763% 364 THEATRE OUT 402 W 4TH ST Yes Yes 0.077644% 365 BROADWAY IMPROVEMENT CO INC 404W 4TH ST Yes Yes 0.027512% 366 CAMPSITE MEDIA HOUSE 404 W 4TH ST UNIT#A Yes Yes 0.074995% 367 ASAP LEGAL SOLUTION 404 W 4TH ST UNIT# B Yes Yes 0.570614% 368 HAIR ATELIER BY KARLY GISELLE 404 W 4TH ST UNIT#E Yes I Yes 0.057877% 369 REED, (KENNETH ALAN AM AT LAW 406 W 4TH ST Yes Yes 0.094559% 370 CA72ELL & ASSOCIATES, ATTORNEYS 406 W 4TH ST Yes Yes 0.086000% 371 OASIS DENTAL SANTA ANA 408 W 4TH ST Yes Yes 0.111677% 372 CRAVE 430 W 4TH ST Yes Yes 0.694518% 373 KNOWLWOOD CAFE AT THE REAGAN COURTHOUSE 411 W4TH ST Yes Yes 0.194416% 374 DOWNTOWN 414 414 W4TH ST Yes Yes 0.108690% 375 LFT P ROPE RTY MANAG M ENT, LLC 414 W4TH ST Yes Yes 0.038211% 376 SH OFFN ER, GARY 414 W 4TH ST UNIT#A Yes Yes 0.086000% 377 ET CETERA STUDIOS LLL 414 W 4TH ST UNIT#L Yes Yes 0.060322% 378 PREMIERE ASSOCIATION MGMT 414 W 4TH ST UNIT#O Yes Yes 0.051763% 379 VELVET LOUNGE 416 W4TH ST Yes Yes 0.077644% 380 COPETE LAW FIRM 450 W 4TH ST UNIT# 250 Yes Yes 0.08600094, 381 RAMONA BUILDING LLC (118420) 118 W 5TH ST Yes Yes 0.014877% 382 ESPORTS ARENA 120 W 5TH ST UNIT#100 Yes Yes 0.051763% 383 SVN/VANGUARD 120 W 5TH ST UNIT#210 Yes Yes 0.086000% 384 FINANCIAL ADVOCATES, INC. 120 W 5TH ST UNIT#220 Yes Yes 0.275525% 385 LA RINCONADA RESTAURANT 300 W STH ST Yes Yes 0.114665% 386 BROADWAY IMPROVEMENT ED (300-322) 306W STH ST Yes Yes 0,018341% 387 NINJAS WITH APPETITE 318 W STH ST Yes Yes 0.142450% 388 MILJ0005 320 W 5TH ST Yes Yes 0.218871% 389 CM PROPERTIES 313 N BIRCH ST Yes I Yes 0,030874% 390 MATTINGLEY, MIKE 1055 BIRCH ST Yes Yes 0.006521% 391 CASA LINDA FURNITURE INC 116 N BROADWAY ST Yes Yes 2.073162% 392 VIAJES BEARDEN'S 117 N BROADWAY ST Yes Yes 0,099042% 393 H & R BLOCK ENTERPRISES INC 117 N BROADWAY ST Yes Yes 0.072549% 394 BEARDEN'S 117 N BROADWAY ST Yes Yes 1.404932% 395 109 BROADWAY, LLC 117 N BROADWAY ST Yes Yes 0.042083% 396 JONES, ERIC LEONARD 125 N BROADWAY ST Yes Yes 0.030161% 397 HIPCOOKS 125 N BROADWAY ST UNIT#C Yes Yes 0.167516% 398 GYPSY DEN 125 N BROADWAY ST UNIT#D Yes Yes 0.077644% 399 C4 DELI 200 N BROADWAY ST Yes Yes 0.306297% 400 LUNA KUTSI 201 N BROADWAY ST Yes Yes 0.077644% 401 EMPIRE BUILDING LLC 204 N BROADWAY ST Yes Yes 0.036886% 402 LENTZ MORRISSEY ARCHITECTURE, INC. 204 N BROADWAY ST UNIT# F Yes Yes 0.146322% 75A-12 DATA AS OF 11130/2016 Intent to Levy BID Assessment List EXHIBIT 2 Weighted Protest Value Number Business Name Business Address BID Area BID Eligible I% of 100% Total) 403 HAL BRISCOE FINE ART 204 N BROADWAY ST UNIT#M Yes Yes 0.077644% 404 SANTORA GROUP LLC 207 N BROADWAYST Yes Yes 0.056144% 40S ATILANO SALON 207 N BROADWAY ST UNIT#100 Yes Yes 0.054208% 406 CALENDAR FACTORY INC dba TETHOS CREATIVE 2D7 N BROADWAY ST UNIT#A Yes Yes 0.222947% 407 GENE, ARTISTSTUDIO/GALLERY 207 N BROADWAY ST UNIT#811 Yes Yes 0.078256% 408 THE ARTBAR 207 N BROADWAY ST UNIT#B6 Yes Yes 0.111270% 409 TWEENA'S TUNES 207 N BROADWAY ST UNIT#E Yes Yes 0.068474% 410 LAW OFFICES OF FERNANDO LEONE 207 N BROADWAY ST UNIT#F Yes Yes 0.094559% 411 LAW OFFICE OF ROBERT NEWMAN 207 N BROADWAY ST UNIT#K Yes Yes 0.086000% 412 CRESCENDOH, LLC 207 N BROADWAY ST UNIT#L Yes Yes 0.077644% 413 ESPARZA,ROSEMARYJ LAW OFFICES 207 N BROADWAY ST UNIT#N Yes Yes 0.103118% 414 DEELUX 209 N BROADWAYST Yes Yes 0.228653% 415 LAST KINGS 210 N BROADWAYST Yes Yes 0.114665% 416 BLACKMARKET BAKERY SA LLC 211 N BROADWAY ST Yes Yes 0.077644% 417 ELITE FITNESS DOWNTOWN, LLC 214 N BROADWAY ST Yes Yes O.D79886% 418 CORBIZ LLC 214 N BROADWAY ST Yes Yes 0.051763% 419 PROOF 215 N BROADWAY ST Yes Yes 0.077644% 420 CORBIZ LLC (217-221) 217 N BROADWAY ST Yes Yes 0.012941% 421 ARTIST VILLAG E HAIR STU DID BY BRUNCH 217 N BROADWAY ST Yes Yes 0.108824% 422 JANET'S BIKE SHOP 219 N BROADWAY ST Yes Yes 0.094151% 423 SUBWAY#26294 220 N BROADWAY ST Yes Yes 0.333198% 424 225 N BROADWAY, LLC 225 N BROADWAY ST Yes Yes 0.045242% 425 AKINSPARKER CREATIVE, LLC 225 N BROADWAY ST Yes Yes 0.509069% 426 THE COPPER DOOR 2251/2N BROADWAY ST Yes Yes 0.057061% 427 THE COPPER DOOR BAR 2251/2N BROADWAY ST Yes Yes 0.077644% 428 RUMORZ KUTZ 225 N BROADWAY ST UNIT#203 Yes Yes 0.057877% 429 THAD VU PHOTOGRAPHY, LLC 225 N BROADWAY ST UNIT#204 Yes Yes 0.060322% 430 MENARCH 225 N BROADWAY ST UNIT#213 Yes Yes 0.086000% 431 -SR BUILDERS, INC 225 N BROADWAY ST UNIT#216 Yes Yes 0.103118% 432 CHAPTER ONE: THE MODERN LOCAL 227 N BROADWAY ST Yes Yes 0.875484% 433 B&B TAX SMART SOLUTION 300 N BROADWAY ST Yes Yes 0.051763% 434 GILMAKER, DEBORAH (300-306) 300 N BROADWAY ST Yes Yes 0.041268% 435 COSTA AZU L TRAVEL #419-5 300 N BROADWAY ST Yes I Yes 0.052986% 436 MI MODA 304N BROADWAY ST Yes Yes 0,205421% 437 CENTRO NATURISTA 310 N BROADWAY ST Yes Yes 0.105767% 438 GIGI'S DANCE STUDIO 310 N BROADWAY ST Yes Yes 0.052986% 439 FANTASY BEAUTY SALON 312 N BROADWAY ST Yes Yes 0.067658% 440 ALCATRAZ FLOWERS 323 N BROADWAY ST UNIT#A Yes Yes 0.066028% 441 CENTRALTRAVEL&TOUR SERVICE 324 N BROADWAY ST Yes Yes 0.089668% 442 SAADI, JOSEPH 325 N BROADWAY ST Yes Yes 0.012941% 443 IRENIA 400 N BROADWAY ST Yes Yes 0.114665% 444 LASH A MORE 4051/2N BROADWAY ST Yes Yes D.086000% 445 RED LIPS MAKEUP STUDIO 4051/2N BROADWAY ST Yes Yes 0.057061% 446 GENISES BRIDAL BOUTIQUE 405 N BROADWAY ST UNIT#A Yes Yes 0.140616% 447 THE DEW SALON 405 N BROADWAY ST UNIT#D Yes Yes 0.051763% 448 PRIVILEGE PHOTOGRAPHY 405 N BROADWAYSTUNIT#F Yes Yes 0.064805% 449 MANUEL I. PENACONSULTING (#E) 407 N BROADWAY ST Yes Yes 0.051763% 450 HECTOR'S#3 409 N BROADWAY ST Yes Yes 0.081312% 451 UNISEX BEAUTYSALON 413 N BROADWAY ST Yes Yes 0.051763% 452 FAINBARG, ALLAN 413 N BROADWAY ST Yes Yes 0.015386% 453 1 RIVAS FOOD CO. 413 N BROADWAY ST U NIT#A Yes Yes 0.251274% 454 BEATNIK BANDITO MUSIC EMPORIUM 417 N BROADWAY ST Yes Yes 0.094151% 455 MACRES FLORIST 419 N BROADWAY ST Yes Yes D.228042% 456 TRUTH &ADVERTISING 454 N BROADWAY ST Yes Yes D.5861D2% 457 RAGS 454 N BROADWAY ST UNIT#100 Yes I Yes 0.103322% 458 BARK 454 N BROADWAY ST UNIT#250 Yes Yes 0.036682% 459 RICARDO'S AUTO REPAIR 119 N BUSH ST Yes Yes 0.051763% 460 STANDARD REBUILDERS 119 N BUSH ST UNIT#B Yes Yes 0.098227% 461 AFFORDABLE VIDEO PRODUCTIONS, LLC. 204 N BUSH ST Yes Yes 0.095374% 462 HACOM 205 N BUSH ST yes Yes 0.177298% 463 SPLITENDS SALON 207 N BUSH ST Yes Yes 0.051763% 464 AN IDEAL WORLD 209 N BUSH ST Yes Yes 0.108824% 465 KICKER FISHING BRAND 213 N BUSH ST Yes Yes 0.097208% 466 S.M. DESIGN A550C., INC. 220 N BUSH ST Yes Yes 0.086000% 467 PROMETHEAN GAMES, INC. 225 N BUSH ST Yes Yes 0.052170% 468 DONALD KROTEE PARTNERSHIP INC 230N BUSH ST Yes YeYes 0.145914% 469 THEMGOODS DISTRIBUTION 243N BUSH ST Yes s 0.072549% 7 75A-13 DATA AS OF 1113012016 Intent to Levy BID Assessment List EXHIBIT 2 Weighted Protest Value Numin- Rucmo- Name Business Address BID Area BID Ellgible (% of 100% Total) 470 BARBARINO, RICHARD 265 N BUSH ST Yes Yes 0.006521% 471 FORIKAN, JOE A. 265N BUSH ST Yes Yes 0,030161% 472 IMPACT POWER 269N BUSH ST Yes Yes 0.322193% 473 LA CASA BLANCA BEAUTY SALON 300 N BUSH ST Yes Yes 0.059914% 474 PARKING CO OF AMER CAL 300N BUSH ST Yes Yes 0.057061% 475 PARKING CO OF AMERICA/CAL 302N BUSH ST Yes Yes 0.014062% 476 ELMAX BEAUTY SALON 308 N BUSH ST Yes Yes 0.086407% 477 JALISCO BRIDAL POLO &VIDEO 310N BUSH ST Yes Yes 0.091706% 478 CASUELAS PANCHITO 312N BUSH ST Yes Yes 0.128999% 479 LAS CASUELAS 312N BUSH ST Yes Yes 0.114665% 480 EAT CHOW 313N BUSH ST Yes I Yes 0.114665% 481 DE OLIVAS LAW FIRM 318 N BUSH ST UNIT# B Yes Yes 0.154881% 482 THE WILCOX GROUP, LLC. 712 N BUSH ST Yes Yes 0.017730% 483 CUSTOM AUTO SERVICE 302 N FRENCH ST Yes Yes 0.262075% 484 YOST STUDIOS 320N FRENCH ST Yes Yes 0.012941% 485 LEFT OF THE DIAL RECORDS 320 N FRENCH ST UNIT#B Yes Yes 0.129611% 486 CVS/PHARMACY#9583 102 N MAIN ST Yes Yes 2.002854% 487 M & A GABAEE, A CAL LTD PTNERSHIP 102N MAIN ST Yes Yes 0.051253% 488 RITE AID#5759 111N MAIN ST Yes Yes 1.729571% 489 GAUCHO INVESTMENTS, LLC 200 N MAIN ST Yes Yes 0035867% 490 DIAMOND PARKING SERVICES LLC #SA58 200 N MAIN ST Yes Yes 0.071327% 491 LAW OFFICE OF PATRICIA EULLOQUI 200 N MAIN ST UNIT# 200 Yes I Yes 0.094559% 492 LAW OFFICE OF JOSEPH E. RICHARDS 200 N MAIN ST 1-1200 Yes Yes 0111677% 493 THE LAW OFFICE OF CHRISTOPHER MARKELZ 200 N MAIN ST UNIT#200 Yes Yes 0086000% 494 LAW OFFICE OF SARAH KABIR 200 N MAIN ST UNIT# 200 Yes Yes 0.086000% 495 DASCANIO, DENNIS LAW OFFICE 200 N MAIN ST UNIT# 200 Yes Yes 0.1373557 496 NIGHT GALLERY CERAMICS 201N MAIN ST Yes Yes 0.083758% 497 DOING GOOD WORKS 217 N MAIN ST UNIT#115 Yes Yes 0.114665% 498 DOING GOOD WORKS 217 N MAIN ST UNIT#115 Yes Yes 0.086000% 499 SUSTAINED SOLUTIONS, INC. 217 N MAIN ST UNIT# 125 Yes Yes OA59914% 500 DGWB, INC. 217 N MAIN ST UNIT#M22 Yes Yes 1.791319% 501 DGWB VENTURES LLC 217 N MAIN ST UNIT#M22 Yes Yes 0.055839% 502 FLORAL PARK CAFE 300N MAIN ST Yes I Yes 0.496434% 503 MIX MIX (KITCHEN BAR 300 N MAIN ST Yes Yes 0.039128% 504 DUEL, EBRAHIM 301 N MAIN ST Yes Yes 0.029142% 505 WESTERN WOMENS INSTITUTE, INC. 301N MAIN ST Yes Yes 0.103118% 506 SWEET TOOTH DENTAL 3011/2N MAIN ST Yes Yes 0.103118% 507 MI CAMINITO 302N MAIN ST Yes Yes 0.054208% 508 MI CAMINITO 302N MAIN ST Yes Yes 0.168739% 509 GU RAMEN OF DOWNTOWN SANTA ANA 304N MAIN ST Yes Yes 0.1146657 510 QUAN M. TRAN, O.D. OPTOMETRY 305 N MAIN ST Yes Yes 0.111677% 511 CHARLOTTES BARBER SHOP 306 N MAIN ST Yes Yes 0.052986% 512 UVA'S BRIDAL & CREATIONS 307 N MAIN ST Yes Yes 0.099654% 513 ESTRADA, JOSEFINA 315 N MAIN ST Yes Yes 0.051763% 514 WESTERN DENTAL SERVICES INC 500 N MAIN ST Yes Yes 0.370084% 515 LOCKOUT MUSIC STUDIOS 501N MAIN ST Yes Yes 0.051763% 516 CROSSFIT DOWNTOWN SANTA ANA 503N MAIN ST Yes Yes 0.085184% 517 SA CLINICA MEDICA GENERAL 505N MAIN ST Yes Yes 0.360302% 51B CEDARSTOWERS SURGICAL MED GRP 505N MAIN ST Yes Yes 0.1463227 519 FARMACIA SANTA ANA 510 N MAIN ST Yes Yes 0.077644% 520 515 N MAIN LLC. 515 N MAIN ST Yes Yes 0.114665% 521 515 N MAIN LLC 515 N MAIN ST Yes Yes 0.012941% 522 CLINICA MEDICA FAMILIAR DE SANTA ANA 517N MAIN 5T Yes Yes 0.343999% 523 SOUTH GATE ROSE PHARMACY INC 517 N MAIN ST UNIT# 101 Yes Yes 0.478704% 524 RAPLISA MEDICAL MANAGEMENT, INC. 517 N MAIN ST UNIT#250 Yes Yes 0.086000% 525 CACERES, JULIO DDS 517 N MAIN ST UNIT#300 Yes Yes 0.09455994, 526 MAIN OPTICAL 520 N MAIN ST Yes Yes 0.072957% 527 AGUiLAR, SERGIO DDS 520 N MAIN ST Yes Yes 0.103118% 528 500 N MAIN LLC 520 N MAIN ST Yes Yes 0.046974% 529 AQUEVEQUE, JOSE (& 109 W CAMILE) 520 N MAIN ST Yes Yes 0.008763% 530 MAIN STREET PRENATAL MEDICAL C 520 N MAIN ST UNIT#100 Yes Yes 0.18D558% 531 MARYAM RAHNEMUN M.D. INC. 520 N MAIN ST UNIT#220 Yes Yes 0.128796% 532 BRUSH ADVISORIES(UNIT#111) 520 N MAIN ST UNIT# 240 Yes Yes 0.086000% 533 THE BNS FUND, LLC 601 N MAIN ST Yes Yes 0.026391% 534 JACK IN THE BOX #3180 601 N MAIN ST Yes Yes 0.077544% 535 WORLD TRAVEL BUREAU INC 618N MAIN ST Yes Yes 0.286937% 536 PALMER INCOME TAX 631N MAIN ST Yes Yes 0.189118% 8 75A-14 DATA AS OF 1113012016 Intent to Levy BID Assessment List EXHIBIT 2 Weighted Protest Value Number Business Name Business Address BID Area BID Eligible I% Of 100% Total) 537 PALMER INSURANCE AGENCY 631N MAIN ST Yes Yes 0.123090% 538 SUBWAY #63685 700N MAIN ST Yes Yes 0.179132% 539 7 -ELEVEN STORE H37101A 700 N MAIN ST UNIT# 8 Yes Yes 0.489709% 540 BURGER KING (4309/4916) 701 N MAIN ST Yes Yes 0.077644% 541 ORG CO CENTER OF LEGAL SVCS 711 N MAIN ST Yes Yes 0.103118% 542 PLUS VIDEO 713 N MAIN ST Yes Yes 0.122886% 543 TRANG, CHARLIE 715 N MAIN ST Yes Yes 0.015692% 544 ME COSTA A MEXICAN TACO JOINT 715 N MAIN ST Yes Yes 0.090483% 545 SOMBRERO STREET 719N MAIN ST Yes Yes 0.522112% 546 ORIGINAL MIKE'S RESTAURANT 1005 MAIN ST Yes Yes 0.863257% 547 100 SOUTH MAIN STREET LLC 1005 MAIN ST Yes Yes 0.022111% 548 FIRESTONE COMPLETE AUTO CARE H27JF 1015 MAIN ST Yes Yes 0.451804% 549 WNC REAL ESTATE PARTNERS LP 100N ROSS ST Yes Yes 0.228449% 550 EMILIO GONZALEZ PAINTING 300 E SANTA ANA BLVD UNIT#214 Yes Yes 0.061952% 551 CF SANTANA LLC 200 W SANTA ANA BLVD Yes Yes 0.158447% 552 ACE PARKING MANAGEMENT 200 W SANTA ANA BLVD Yes Yes 0.083962% 553 BURD & NAYLOR 200 W SANTA ANA BLVD Yes Yes 0.189118% 554 THE REEVES LAW GROUP 200 W SANTA ANA BLVD UNIT# 630 Yes Yes 0.456491% 555 WILSON AND PESOTA, LLP 200 W SANTA ANA BLVD UNIT# 970 Yes Yes 0.284084% 556 HITPROS INC 520 W SANTA ANA BLVD Yes Yes 0.057469% 557 BEST CONSTRUCTION SERVICES, INC. 520 W SANTA ANA BLVD Yes Yes 0.103118% 558 ELHAI FAMILYTRUST 550 W SANTA ANA BLVD Yes Yes 0.012941% 559 CIVIC CENTER LLC 600 W SANTAANA BLVD Yes Yes 0.162014% 560 IMMIGRATION 4U 600 W SANTA ANA BLVD Yes Yes 0.079478% 561 SUNNY HILLS PALLADIUM 600 W SANTAANA BLVD Yes Yes 0.127165% 562 ORANGE COUNTY REPORTER 600 W SANTAANA BLVD Yes Yes 0.3069095; 563 RASCH INVESTIGATIONS 600 W SANTA ANA BLVD Yes Yes 0.074587% 564 M C D GENERALSERVICES 600 W SANTA ANA BLVD Yes yes 0.059914% 565 DANTE'S COFFEE &TEA 600 W SANTA ANA BLVD UNIT#100 Yes Yes 0.188303% 566 SANTA ANA LEGAL SUPPORT, INC. 600 W SANTA ANA BLVD UNIT#101 Yes Yes 1.079277% 567 NATIONAL TRANSLATION & PHOTOCOPY 600 W SANTA ANA BLVD UNIT# 102 Yes Yes 0.051763% 568 IONLINE VOCATIONAL ACADEMY, INC. 600WSANTAANA BLVD UNIT#102 Yes I Yes 0.051763% 569 PLAZA CAFE &DELI 600 W SANTAANA BLVD UNIT#103 Yes Yes 0.129611% 570 PES -EBS, INC. BUD W SANTAANA BLVD UNIT# 1D7 Yes Yes 0.038720% 571 PES -EBS, INC. 600 W SANTAANA BLVD UNIT# 108 Yes Yes 0.248217% 572 PES -EBS, INC, 600 W SANTAANA BLVD UNIT#110 Yes Yes 0.038720% 573 SIMPLE LEGAL SOLUTIONS 600 W SANTA ANA BLVD UNIT#114 Yes Yes 0.086407% 574 FREEDOM MAILBOX 600 W SANTA ANA BLVD UNIT#114 Yes Yes 0.086000% 575 LAW OFFICES OF STEPHEN J RIGGS 600 W SANTA ANA BLVD UNIT#202 Yes Yes 0.086000% 576 ON POINTTRACKING SERVICES 600 W SANTA ANA BLVD UNIT#208 Yes Yes 0.0860075. 577 DODONEW, INC. 600 W SANTA ANA BLVD UNIT#214 Yes Yes 0.086000% 578 PROHEALTH PARTNERS, A MEDICAL GROUP, INC. 600 W SANTA ANA BLVD UNIT#214A Yes Yes 0.077440% 579 CONECCION LATINA/ CLEAN AS A WHISTLE CLEANING SER 600 W SANTA ANA BLVD UNIT#2148 Yes Yes 0.062768% 580 PATRICIO, HERMANSON & GUZMAN, A. P. C. 600 W SANTAANA BLVD UNIT#700 Yes Yes 0.232729% 581 BETTER HEALTH NETWORK MANAGEMENT, INC. 680 W SANTAANA BLVD UNIT#802 Yes Yes 0.086000% 582 SAN MARTIN MARKETING, INC. 600 W SANTAANA BLVD UNIT# 802 Yes Yes 0.086000% 583 BETTER HEALTH NETWORK MANAGEMENT, INC. 600 W SANTAANA BLVD UNIT#802 Yes Yes 0.086000% 584 PERSONAL COURT REPORTERS 600 W SANTA ANA BLVD UNIT#805 Yes Yes 0.060322% 585 LAW OFFICE OF DEBORAH M. VASQUEZ 600 W SANTA ANA BLVD UNIT#814 Yes Yes 0.086000% 586 ROLNICKI, ROLF ATTORNEY 600 W SANTA ANA BLVD UNIT#814 Yes Yes 0.094559% 587 ROSEN, MARK S - ATTORNEY 600 W SANTA ANA BLVD UNIT#814 Yes Yes 0.154881% 588 BARTONE, GREGORY LEE ATTORNEY 600 W SANTA ANA BLVD UNIT#814 Yes Yes 0.086000% 589 LAW OFFICES OF JESSE A. MARINO 608 W SANTA ANA BLVD UNIT#816 Yes Yes 0.137355% 590 LAW OFFICE OF RENEE GARCIA 600 W SANTA ANA BLVD UNIT#910 Yes Yes 0.086000% 591 MU NOZ & ASSOCIATES 600 W SANTA ANA BLVD UNIT#910 Yes Yes 0.094559% 592 OSAIIMA, GLEN N K LAW OFFICES O 6DO W SANTA ANA BLVD UNIT#910 Yes Yes 0.0860009'. 593 CRAFTS LAW FIRM, LLP. 600 W SANTAANA BLVD UNIT# 925 Yes Yes 0.171999% 594 H&H LAW 600 W SANTA ANA BLVD UNIT#950 Yes Yes 0.120236% 595 HUFSTADER, DONALD K LAW OFFICE 600 W SANTAANA BLVD UNIT#955 Yes Yes 0.086000% 596 SCHULMAN, THOMAS 1600 W SANTA ANA BLVD UNIT#955 Yes Yes 0.094559% 597 GRIFFIN LOTZ& HOLZMAN, A LAW CORP. 1600 W SANTA ANA BLVD UNIT#960 Yes Yes 0.146322% 598 CHLOE M. STATON TRUST (219 E IST STI 116 N SPURGEON ST Yes Yes 0.015284% 599 FIESTA MARKETPLACE PARTNERS 301 N SPURGEON ST Yes Yes 0.010601% 600 EL MERCADO MODERN CUISINE 301 N SPURGEON ST Yes Yes 0.114665% 601 IYOJIE JAPANESE FONDUE 303 N SPURGEON ST Yes Yes 0.111950% 602 The 1912 305 N SPURGEON ST Yes Yes 0.077644% 603 ITHE YOST 307 N SPURGEON ST I Yes I Yes 0.525780% 9 75A-15 DATA AS OF 1V30/2016 EXHIBIT 2 Intent to Levy BID Assessment List Weighted Protest Value Ruslness Address BID Area BID Eligible (% of 100% Total) 604 YOSTTHEATER 307 N SPU RGEON ST Yes Yes 0.077644% 605 QARTSALON 205 N SYCAMORE ST yes Yes 0.097209% 606 WESTCUFF PROPERTIES 211 N SYCAMORE ST Yes Yes 0.068066% 607 CREACIONES ALEJANDRA FOTO ESTUDIO Y BRIDAL SHOP 318 N SYCAMORE ST Yes Yes 0.092317% 608 LOMELI, ARTURO DDS 415 N SYCAMORE ST Yes Yes 0.198084% 609 LOMELI, ARTUROJ 415 N SYCAMORE ST Yes Yes 0.015488% 610 FULL HEALTH UNIVERSITY MEDICAL 415 N SYCAMORE ST Yes Yes 0.103118% 611 DIAMOND PARKING SERVICES LLC NSA01 416 N SYCAMORE ST Yes Yes 0.088445% 612 VITARELLI 511 N SYCAMORE ST Yes Yes 0.100265% 613 ISONI, NEIL (7D1-703) 1701 N SYCAMORE ST Yes Yes 0.009884% 10 75A-16 DOWNTOWN SANTA ANA BUSINESS IMPROVEMENT DISTRICT 2017 ASSESSMENT REPORT Background On February 6, 1984, the City Council adopted Ordinance No. NS -1715 pursuant to Section 36500, et seq., of the 1979 State of California Streets and Highways Code, creating a Business Improvement District (BID) in Downtown Santa Ana. On October 6, 2003, the City Council appointed the Community Redevelopment and Housing Commission (CRHC) as the Downtown Santa Ana Business Improvement District Advisory Board. As the BID Advisory Board, the CRHC is responsible for making recommendations to the City Council on the expenditure of revenues derived from the levy of assessments, on the classification of businesses, as applicable, and on the method and basis of levying the assessments (including the annual budget). The BID was established as a means of providing the Downtown business community with the funding to promote the Downtown through events and advertising pieces; funding to increase security and enhance the overall aesthetics of the area; and also to maintain the downtown shopping corridors. Improvement Area Boundaries The geographic boundaries of the district remain unchanged from the original 1984 area, and they include over 600 retail, service, and professional members (see Attachment A). Assessment Formula The formula for the BID tax levy also remains unchanged from the original 1984 ordinance and is based on the category and/or sales volumes of the business (see Attachment B). 2017 Budaet Plan Based on the feedback from the two Associations, Downtown Inc. and the Santa Ana Business Council, the 2017 BID Budget focuses on the continuation of promotions and marketing of the BID. Some of the promotion and marketing will be focused on Downtown events and advertising pieces, which are all designed to enhance the overall aesthetics of the area and also to maintain the downtown shopping corridors. Detailed breakdowns of the two groups' budgets are attached (Attachment C). The assessments from the 2017 BID are estimated at $200,000 to be split evenly by Downtown Inc. and the Santa Ana Business Council—the two business groups that have spearheaded this BID process. Any remaining funds from the previous year will be incorporated into a reserve fund for the groups' 2017 budgets. Downtown, Inc. will not carry over funds into 2017. The Santa Ana Business Council will carry over approximately $50,000 into 2017. This reserve funding may be used for additional events and promotions throughout the year. I'Mi t In 2017, the two representative business associations are proposing to host and/or sponsor a variety of community events and promotions, including: Art Walk (12x) Patchwork Savor Santa Ana Weekly live music on Calle Cuatro Weekend matinees Sidewalk Sales Flashmob Contests Other programming for the associations will include ongoing social media marketing, funding for the Downtown Restaurant Association, holiday promotions, website development and maintenance, and ongoing support for small businesses. 75A-18 ■ ATTACHMENT A BUSINESS IMPROVEMENT DISTRICT BOUNDARY FLOWER ST. z+ H y MAIN ST. GUSH 5T. r-1 L BIRCH ST. § � T -1 F] ti 5T.IORE❑ ❑ SYCA❑ SF F-1 F-1 F-1 F I F] 7 F-1 F-1 F-1 I I El SPURGEON Si FRENCH ST. F� F -Ir I'm—,V 75A-19 ATTACHMENT B 2017 ANNUAL ASSESSMENT FORMULA The following businesses located within the boundaries of the Business Improvement District (BID), classified under City Ordinance NS 1690 as Amusement Services, Pawnbrokers, Service Station and Classification A, including, but not limited to Retail Sale of Goods, Hotel and Motels, Theaters and Food Establishments, shall pay an amount equal to one and one-half times their annual business license fee. Businesses classified as Commercial Rent Rooming House shall pay an amount equal license fee. I Property, Rental Property, Residential and to one-quarter times their annual business All other businesses, including Professions, Trades and Services within the boundaries of the proposed Business District, shall pay an amount equal to their annual business license fee. Once the assessment formula is established, it cannot be changed without written notice to all businesses within the boundaries of the proposed Business Improvement District and a public hearing held by the City of Santa Ana. 75A-20 ATTACHMENT C DOWNTOWN BUSINESS IMPROVEMENT DISTRICT PROPOSED BUDGETS SUMMARY 2017 Id»:LSII►";LW IN] REVENUE 2017 BID Assessments — Projected $200,000 Prior Year Carry Forward (Estimated) $50,000 Total Revenue $250,000 Downtown Inc. (DTII PERSONNEL Lead Consultant $36,000 Administration $9,000 Event Planning $4,000 Social Media $4,000 Professional Services $5,000 Personnel Total $58,000 COORDINATION & CAPACITY DEVELOPMENT Trainings/Education $1,000 Memberships/Affiliations $1,500 Meetings/Communication $2,500 Coordination & Capacity Development Total $5,000 MARKETING Advertising/Promos $10,000 Programming $8,000 Stakeholder Partnerships $8,000 Artists/Performers $4,000 Marketing Total $30,000 OFFICE/BUSINESS EXPENSES Web/Tech $1,500 Office supplies/Expenses $1,500 Insurance/Permits/Fees $4,000 Office/Business Expenses Total $7,000 DTI — TOTAL EXPENDITURES (2017) $100,000 75A-21 Santa Ana Business Council (SABC) ADMINISTRATION General Labor Office Supplies Administration Total PROFESSIONAL SERVICES Insurance PR/Consulting Accounting Seminars/Training $2,000 $2,000 $3,000 $26,000 $3,000 $1,000 $4,000 Professional Services Total $33,000 MARKETING $52,000 Communications//Web/Social Media $18,100 Flyers/Advertising/Printing $10,500 Web hosting/Social Media Fees $400 Sponsorships $3,000 Economic/Education Development $7,000 Marketing Total $39,000 BID PROMOTIONS/LIVE ACTIVATION Music/Entertainment (weekly) $52,000 Contract Services (weekly) $13,000 Contests $3,000 Collaborative Events/Sponsorships $6,000 BID Promotions/Live Activations Total $74,000 SABC — TOTAL EXPENDITURES (2017) $150,000 TOTAL BID EXPENDITURES (2017) $250,000 75A-22 REQUEST FOR COUNCIL ANION CITY COUNCIL MEETING DATE: 20, 2016 TITLE: PUBLIC HEARING — FIRST AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2015-03 FOR THE HERITAGE VILLAGE MIXED-USE DEVELOPMENT AT 2001 EAST DYER ROAD — PAMELA SAPETTO, APPLICANT {STRATEGIC PLAN NO. 5, 3) i CITY MANAgrR RECOMMENDED ACTION STAFF RECOMMENDATION CLERK OF COUNCIL USE ONLY: .•^• _01 ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Approve the First Amendment to Development Agreement No. 2015-03. PLANNING COMMISSION RECOMMENDATION Deny the First Amendment to Development Agreement No. 2015-03. At its regular meeting on November 14, 2016, staff recommended that the Planning Commission recommend that the City Council approve the applicant's request to amend the recorded development agreement. However, after receiving public testimony on the proposal, the Planning Commission voted to recommend that the City Council deny the First Amendment to Development Agreement No. 2015-03 by a vote of 5:1 (Gartner opposed, Bacerra abstained). Approval of the amendment would have added language to the agreement to allow the payment of the required inclusionary housing funds per each phase of development instead of a single lump sum as required by the Housing Opportunity Ordinance. The Planning Commission made no other changes to the terms of the agreement as outlined in the attached staff report (Exhibit A). DISCUSSION The developer of the Heritage Village mixed-use development is proposing to amend their approved and recorded development agreement to alter the timing of their payment for their inclusionary housing in -lieu fees. Currently, the Santa Ana Municipal Code (SAMC) requires the housing in -lieu fee to be paid at issuance of the first building permit, which would require a payment of approximately $9,700,000 when the first building permit is issued. The applicant is proposing to allow the housing in -lieu fees be paid as permits are issued for each of the three phases of the development. This would result in an initial payment of about $2,700,000 when the first permit is issued, which is tentatively planned for December 2016. The remaining $7,000,000 7513-1 First Amendment to Development Agreement No. 2015-03 — Heritage Village Mixed -Use Development at 2001 East Dyer Road December 20, 2016 Page 2 in in -lieu fees will be paid as permits are issued for each subsequent phase of development. Table 1, below, provides a breakdown of the inclusionary housing fees and the approximate date of payment of the fees. Table 1 Inclusionary Housing Fees for Heritage Village Project Phase Estimated Fee Estimated Payment Date Phase 1 $2,700,000 January 2017 Phase 2 $3,250,000 Summer 2017 Phase 3 $3,700,000 Winter 2017 Total $9,650,000 N/A After receiving public testimony and deliberating the merits of the applicant's request, the Planning Commission stated their desire that the applicant comply with the terms of the Housing Opportunity Ordinance. 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 livability in Santa Ana neighborhoods). FISCAL IMPACT There is no fiscal impact associated with this action. Hassan HagAni, AICP Executive Director Planning and Building Agency VF:rb vAreporta\The Heritage\Amend DA15-03.m Exhibit: A. Planning Commission Staff Report 75B-2 EXHIBIT ORDINANCE 75B-3 LS 11/14/16 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND HERITAGE VILLAGE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Amendment to the Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. This Amendment to the Development Agreement came before the Planning Commission for a duly noticed public hearing on November 14, 2016. The Planning Commission, on a vote of 5:1, with one abstention, made a motion to recommend denial of the Amendment to the Development Agreement. D. Entering into this First Amendment to the Development Agreement would provide the City with significant benefits that are of regional significance, relate to existing deficiencies in public facilities, and require the owner of the Heritage Village to contribute toward public benefits. E. The City Council has held a noticed public hearing on this Ordinance and has considered all testimony presented thereto. F. The previously adopted and certified Final Environmental Impact Report EIR for the property, EIR No. 2015-01, including the Mitigation Monitoring Program, Findings of Fact and Statement of Overriding Considerations, have been previously approved and certified by this Council. G. The proposed project will not adversely affect the General Plan, as is expressly set forth in the Request for Council Action dated December 20, 2016, Ordinance No. NS -XXX Page 1 of 3 75B-4 together with all supporting documents, including but not limited to, proposed resolutions, which are incorporated herein by this reference. Section 2. The First Amendment to the Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City with such non -substantive changes as may be authorized by the City Manager and City Attorney. The Clerk of the Council is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. Section 3. 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 .12016. APPROVED AS TO FORM: Sonia R. Carvalho City Attorney 0 Lisa Storck Assistant City Attorney Miguel A. Pulido Mayor 75B-5 Ordinance No. NS -XXX Page 2 of 3 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75B-6 Ordinance No. NS -XXX Page 3 of 3 EXHIBIT AMENDMENT TO DEVELOPMENT AGREEMENT 75B-7 EXEMPT FROM RECORDER'S FEES Pursuant to Goverment Cade §§6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 26 Civic Ceiiter Plaza M-30 P.O. Box 19$$ Santa Ana, Catifornia 92702 (Space Above For Recorder's Use) AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT by and between. THE CITY OF SANTA ANA and HERITAGE VILLAGE OC, LLC A DELAWARE LIMITED LIABILITi' COMPANY Dated. 2016 II 1121867,0110C 7 l—� 3'1>947-6U:WYti I I-7.16 wid. vid AMENDNIENT NO. I TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA. AND HERITAGE VILLAGE OC, LLC, a Delaware Iftnited liability company This Amendment No. I to the 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, LLC, a Delaware 1atnited, liability company ("Owner"), The City and Owner are referred to jointly in this Development Agreement as the "Parties" and individually as a"Party." 1. RECITALS. This Amendment No. 1 to the Development Agreement is entered into with reference to the following facts: 1.1. Develloo .anent Af=aeMtn . A Development Agreement by and between the City of Santa Ana, and Heritage Village OC, LLC (the "Development Agreement"), was approved by the City Council ora February 2, 2016 and was recorded oil June 28, 2016 as Instrument No. 2016000293512 in the Official Records, Orange County, The Development Agreement establishes vested development rights for the Heritage Village Project (the "Project") an an 18.84 acre parcel located at the northwesterly corner of East Dyer Load and Redhill Avenue in the City. 1.2. Amendment to Develo i�r Hent A€,reernent. Section 4.3 of the Development Agreement provides that the Development Agreement may be amended from time to time by the mutual consent of the parties provided it is done in a manner consistent with California Government Code Section 65868. Government Code Section 65868 requires that an amendment to a development raga eenrent be subject to a public hearing held by both the Planning Commission and the City Council pursuant to appropriate notice and that the amendment be approved by ordinance and be consistent with the general plan and any applicable specific Klan. 1.3. Phasing of In Lieu Fees. Pursuant to Section 5.8 of the Development Agreement, the Project will be developed in three phases as more fully described in the Development Agreement. Pursuant to Section 5.9 of the Development Agreement the Owner is obligated to pay fire City an in lieu fee orf $9.35 per square foot of habitable space in order to fulfill its inclusionary housing requirement. Section 5.9 does not indicate when the in lieu fees are to be paid.. Section 41.1904(c)(3) of the City Zoning Code addresses the payment of such fees and states that: "The developer shall pay any in lieu fees allowed by this section in full before issuance of the first building permit for any portion of the residential project, including any non-residential portions of a mixed use development." Both the Owner and the City have determined that it is in the best interest of both parties to allow for a phased payment of the in lieu fees pursuant to the terms of this Amendment No. I to the Development Agreement. I iziseznc'ac 7513'9 377,442-0G Wi -7-1Olwrdllld 1.4. Remainder of Development Areent., A1.1 of the provisions of the Development Agreement, other than the amended language in Section "'below, shall remain the same. 1.5. Interest of Owner. Owner represents that it has approved this Amendment No. 1 to the Development Agreement and is authorized to enter into this Amendment No. 1 to the Development Agreement. 1.6. Public Hearings. This Amendment No. 1 to the Development Agreement was the subject of the following public hearings: (a.) Plan�it?g Connnission. On November 14, 2016, the Planning Commission, after giving notice pursuant to Government Code Sections 65090 and 65091, hold a public hearing to consider the Owner's application for this amendment to Development Agreement and the environmental documentation evaluating the potential impacts of the proposed project. (b) City Cogncil. On 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) Enyironmental Anal. Before approving this Atnendnncnt No. 1 to the Agreement, the Planning Commission and the City Council reviewed the proposed action and concluded no further environmental review is required pursuant to California Resources Code Section 21166 and, CEQA Guidelines section 15162. I.?. City Council FLnd n s. The f:ity Council finds that this Amendment No. I to the Dcveloprnent Agreement :is consistent with [lie General Plast, as amended by General Plan Amendment No. 2015-03, applicable specific plan(s), applicable zordng regulations, and all other applicable ordinances, plans, policies and regulations of the City. 1.$: "CityOrdinamce. On 12016, the City Council adopted. Ordinance No. NS- approving this Amendment No, l to the Development Agroement. That ordinance beconnes effective thirty (30) days after the date of adoption, 2, Revised Deveto ntm_ent Agreement. Section 5.9. Section 5.9 of the Development Agreement is hereby amended to now read as follows: "5.9 Inclusion,a y Hotiasing. ('a) Owner's project qualifies as a "pipeline project' ander 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 failfill the inohnsionary housing requirement, Owner may express a pref:eren.ce for how these Nods maybe used, but the final decision regarding use of the inclusionary housing funds lies solely 1121967.0 UOC 75_�-10 372942-0000511-7-161,wd1vrd with the Executive Director of the Community Development Agency, (b) Owner's payment of the in lieu fees shall be paid in phases consistent with the phases of development set forth in Section 6.8. The Owner shall pay the applicable in lieu fee for each phase of the project, based on the habitable space within drat phase of the project, prior to the issuance of the first building permit for that please of the project," IN 'WITNESS WHEREOF, this Amendment No, i to the Development Agreement has been executed by the City of Santa. Ana and by the Owner. Dated this day of , 2016 ATTEST: Maria Huizar, Clerk of the Council APPROVED AS TO FORM: SONIA CARVALHO City Attorney Lisa Stoa-els, Assistwt City Attorney Name: Tifle: RECOMMEND APPROVAL: CITY OF SANTA ANA. David Cavazos, City Manager KERITAGE VILLAGE OC, LLC a Delaware hinited liability company It 1967,01 SOC 75P-1 1 377442-0005'1147 16+wrf14uM Hassan Haghaai,, Executive Director Planning & Building Agency 1111967.01;DC` 75P-1 2 1729,12-000M 11-7-16. wrd;wrd l EXHIBIT PLANNING COMMISSION STAFF REPORT 75B-13 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE; NOVEMBER 14, 2016 TITLE: PUBLIC HEARING — FILED BY PAM SAPETTO FOR THE FIRST AMENDMENT TO DEVELOPMENT AGREEMENT NO, 2015-03 FOR THE HERITAGE VILLAGE MIXED-USE DEVELOPMENT AT 2001 EAST DYER ROAD {STRATEGIC PLAN NO. 3,2) Prepared by Vince Fregoso __._ Executive Direotor PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended • Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Planning Manager RECOMMENDED ACTION Recommend that the Planning Commission recommend that the City Council approve the First Amendment to Development Agreement No. 2015-03. Reauest of Applicant Pam Sapetto, on behalf of Heritage Village OC LLC, is requesting approval of the first amendment to the development agreement for the Heritage Village mixed-use development at 2001 East Dyer Road. Specifically, the applicant is proposing to add language to the agreement to allow the payment of the required inclusionary housing funds per each phase of development instead of a single lump sum as required by the Housing Opportunity Ordinance. Project Description The Housing Element of the General Plan identifies the long range plans for housing throughout the City. The Housing Opportunity Ordinance was established to implement one of the goals of the Housing Element to promote the construction of affordable housing within the City. The applicant is proposing to amend the approved and recorded development agreement and establish the timing of the payment of the required inclusionary housing in -lieu fees for the development. Specifically, the proposal would allow the payment of the in -lieu fees prior to issuing the first building permit for each phase of development instead of payment of the total project in -lieu fee at the issuance of the first building permit. Project Background On November 28, 2011, the City Council adopted the Housing Opportunity Ordinance (HOO). The ordinance requires certain residential projects to provide 15 percent of the total number of units as affordable, whether the project is for sale or rent. The ordinance applies to those developments EXHIBIT A 75B-14 First Amendment to DA No. 2015-03 November 14, 2016 Page 2 requesting a zoning or general plan amendment modifying the designation in one of the following ways; changing a non-residential use to a residential use (including City -initiated amendments), increasing the residential density, enacting the residential provision of an overlay zone, or converting apartments to condominiums. In 2015, the HOO was updated to make the inclusionary housing requirements more predictable for housing developers and to increase affordable housing production in conjunction with new market -rate housing development. The changes included simplifying the in -lieu fee calculation, modifying the "moderate Income" definition to be either "low income" or "very low income," and creating incentives that allow developers the option of providing inclusionary housing either on or off-site, In July 2016, the applicant applied for a zoning ordinance amendment to amend the HOO to allow the payment of the housing in -lieu fee in phases, which is identical to the current proposal. However, the applicant decided to withdraw that application and is proposing to modify only the approved development agreement, thus modifying the in -lieu payment timing for this project only. Project Anal sis In February 2016, the Heritage Village project received their entitlements for the development of 1,221 residential units and ancillary commercial services at 2001 East DYer Road. One of the approved project entitlements was a development agreement, which included the ability to construct the project as a three phase development. Per the HOO, the developer is required to pay the in -lieu fee for the project "before issuance of the first building permit for any portion of the residential development This requires the applicant to pay an in -lieu fee of approximately $9,700,000 for all three phases at issuance of the first building permit, which is planned for December. The project applicant is requesting approval to amend the development agreement and allow the payment of the fee as permits are issued for each construction phase, which is in keeping with customary development fee practices. Currently, all development projects pay fees related to building permits, fire facilities mitigation, parks impacts and other development fees on a per dwelling unit basis or per square foot of construction. The requirement for payment of the total in -lieu fee at the time of first building permit was included in the original 2011 Housing Opportunity Ordinance to encourage the development of affordable housing on-site to promote a mix of affordable housing options in the development. The proposed amendment would allow the project to pay in -lieu fees by construction phase consistent with other development fees, while maintaining Incentives for future developers to construct new on-site or off- site affordable housing versus defaulting to in -lieu payments to the City. Approval of this amendment is a logical and business friendly approach to payment of in -lieu fees, reduces uncertainty for developers who contribute to the City's in -lieu funds, and would allow the applicant to pay an initial fee of approximately $2,735,000 for the first phase, as opposed to $9,700,000 that is currently required for the project. 75B-15 First Amendment to DA No. 2015-03 November 14, 2016 Page 3 Public Outreach and Notification The project site is not located within the boundaries of an established neighborhood association. Staff has notified all interested parties by mail a minimum of 10 days prior to the public hearing. The project site itself was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to 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. In addition, all parties that participated in the various meeting related to amending the Housing Opportunity Ordinance were notified of this meeting, including those in attendance at the July 2016 Advisory Committee meeting, the July 2016 Planning Commission public hearing to amend the HOO, and those attending the October 2016 Development and Transportation City Council Subcommittee meeting. More specifically, staff held phone discussions with those individuals that attended any of the meetings identified above. CEQA Analysis In accordance with the California Environmental Quality Act, the proposed project is exempt from further review pursuant to Section 15061(b)(3) as there is no potential for causing a significant impact on the environment due to the adoption of the development agreement modification related to the collection of fees. Categorical Exemption Environmental Review No. 2016-76 will be filed for this project. Strategic Plan Alignment Approval of this item supports the City's efforts to meet Goal No. 5 Community Health, Livability, Engagement and Sustainability, Objective No. 3 (facilitate diverse housing opportunities and support efforts to preserve and improve livability in Santa Ana neighborhoods). Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission recommend that the City Council adopt an ordinance approving the First Amendment to Development Agreement No, 2015-03. Vince Fregoso, AICo Principal Planner VF:jm vAreportWhe HerilagalAmend DA15-011114Mpc 75B-16 First Amendment to DA No. 2015-03 November 14, 2016 Page 4 Attachments: Exhibit 1 — First Amendment to Development Agreement Exhibit 2 - Development Agreement No. 2015-03 75B-17 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 (Space Above For Recorder's Use) AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and HERITAGE VILLAGE OC, LLC A DELAWARE LIMITED LIABILITY COMPANY Dated: 201.6 EXHIBIT 1 uzis67.01W 372942-00005/II-7-[Wwrd/11mU 75B-18 AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND HERITAGE VILLAGE OC, LLC, a Delaware Iinuted liability company This A tendinent No, l to the 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, LLC, a Delaware limited liability company ("Owner"). The City and Owner are referred to jointly in this Development Agreernent as the "Patties" and individually as a "Party," 1, RECITALS. This Amendment No. I to the Development Agreement is entered into with reference to the following facts: 1.1. Development Agreement, A Development Agreement by and between the City of Santa Ana and Heritage Village OC, LLC (the "Development Agreement"), was approved by the City Council. on February 2, 2016 and was recorded on Tune 28,-2016 as Instrument No. 201600029351.2 in the Official Records, Orange County. The Development Agreement establishes vested development rights for the Heritage Village Project (the "Project") on an 18,84 acre parcel located at the northwesterly comer of East Dyer Road and Redhill Avenue in the City, 1.2. Amendment to Developmmn Ayreement, Section 4.3 of the Development Agreement provides that the Development Agreement may be amended from time to time by the mutual consent of the parties provided it is done in a manner consistent with California Government Code Section 65868. Government Code Section 65868 requires that an amendment to a development agreement be subject to a public hearing held byboth the Planning Commission and the, City Council Pursuant to appropriate notice and that the amendment be approved by ordinance and be consistent with the general plan and any applicable specific plait 1,1 Phasing of In Lieu Fees. Pursuant to Section 5.8 of the Development Agreement, the Project will be developed in three phases as more fully described in the Development Agreement. Pursuant to Section 5.9 of the Development Agreement the Owner is obligated to pay the City an in lieu fee of $9.35 per square foot of habitable space in order to fulfill its inclusionary housing requirement. Section 5.9 does not indicate when the in lieu fees are to be paid. Section 41,1904(c)(3) of the City Zoning Code addresses the payment of such fees and states that: "The developer shall pay any in lieu fees allowed by this section in full before issuance of the First building permit for any portion of the residential project, including any non-residential portions of a mixed use development." Both the Owner and the City have detennitied that it is in the best interest of both parties to allow for a phased payment of the in lieu fees pursuant to the terms of this Amendment No. '1 to the Development Agreement, I IZ1867,011OC _ 372947-00065iI1-7-161wrc1l111d 75B-19 L4. Remainder of Development Agreement. All of the provisions of the Development Agreement, other than the amended language in Section 2 below, shall remain the same. 1.5. Literest of Owner. Owner represents that it has approved this Amendment No. I to the Development Agreement and is authorized to enter into this Amendment No. I to the Development Agreement, 1.6, Public Hearings. This Amendment No. 1, to the Development Agreement was the subject of the following public hearings: (a) Plamdng Cormnission. On November 14, 2016, 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 amendment to Development Agreement and the environmental documentation evaluating the potential impacts of the proposed project. (b) City Council. On 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 Amendment No. I to the Agreement, the Planning Conunission and the City Council reviewed the proposed action and concluded no further environmental review is required pursuant to California Resources Code Section 211.66 and. CEQA Guidelines section 15162. 1.7, Citv Council Findings. The City Council finds that this Amendment No. I to the 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 , 2016, the City Council adopted Ordinance No. NS- approving this Amendment No. 1 to the Development Agreement. That ordinance becomes effective thirty (30) days after the date of adoption. 2. Revised Development Agreement Section 5.9. Section 5.9 of the Development Agreement is hereby amended to now read as follows: "5.9 Inclusionary Housing. (a) Owner's project qualifies as a'pi,peline project' under the Amended Housing Opportunity Ordinance (Article XVIILI of Chapter 41 of the Santa Ana Municipal. Code) and shall pay the City an in lieu fee of $9.35 per square foot of habitable space in order to fulfill the inclusionary housing requirement. Owner may express a preference for how these funds may be used, but the final decision regarding use of the inclusionary housing fiords ties solely 1121667.01 /UC 3 72942-00005/ 11-7-161w,&wrd 756--20 with the Executive Director of the Community Development Agency. (b) Owner's payment of the in lieu fees shall be paid in phases consistent with the phases of development set forth in Section 5:8. The Owner shall pay the applicable in hell fee for each phase of theproject, based on the habitable space within that phase of the project, prior to the issuance of the first building pennit for that phase of the project." IN WITNESS WHEREOF, this Amendment No. i to the Development Agreement has been executed by the City of Santa Arra and by the Owner. Dated this day of 2016 ATTEST: Maria Huizar, Cled< of the Council APPROVED AS TO FORM: SONIA CARVALI-10 City Attorney Lisa Starck, Assistant City Attorney By: Name: Title: RECOMMEND APPROVAL: CITY OF SANTA ANA David Cavazos, City Manager HERITAGE VILLAGE OC; .LLC a Delaware limited liability company 1121967.011OC 3 72 947 00005'111-7 16/w,d/wrd '4' 75B-21 Hassan Haghani, Executive Director Planning & Building Agency 1121867.0110C 372947-OHOOM 1-7-16/w,&,vM -5- 75B-22 EXEMPT FROM RECORDER'S FEES Pursue ttoGoverrLmentCoda.'v 6110awt2'1x RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Sante Ana 20 Civic Center Plaza M-30 P:O, Box 1988 Santa Ana, California 92702 A-2016-173 `)01�_, "aiC"'a )fjarad ywth�tCri rra 1 A•2016-173 Recorded in Official Records, orange county Hugh Nguyen, Clerk -Recorder IIIIG11II]IJjj�jj1111111111J111 INO FEE k$ H 0 0 0 8 4 8 5 4 6 5 2016000293512 2:04 pm 06128/16 37 416Al2 .31 0.00 4.00 0.00 0.00 90.00 0,00 0.00 4.40 DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and HERITAGE VILLAGE OC, LLC, A DELAWARE LIMITED LIABILITY COMPANY Datedi FEBRUARY 2, 2016 EXHIBIT 2 75B-23 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND HERITAGE VILLAGE OC, LLC, a Delaware 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 Heritage Village OC, LLC, a Delaware 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 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 355,000 square foot office/warehouse building would be reduced in size by removing the warehouse portion of the structure to provide a two - 75B724 story 56,000 square foot office building and a 102 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 (fpr residents) open space and recreational facilities on the project site. A 1.01 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 Cade Authorization. City is authorized pursuant to Government Code Sections 65864 through 65569.5 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. 75B-25 (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 Ownership. 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 -2892 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: 75B-26 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, asdefined below. 2.2 "Effective Date" means March 17, 20,16, 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, 20,15-01, 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, LLC, a Delaware limited liability company. 2..6 "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. 2.5 "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- 75Br27 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 -skate 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 Description Referred to Designation � in JeCt18Sr1 A Property Legal Description 1.1, 2.6 B Property Graphical Description 1.1 j 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, facade 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 75B-28 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 pert, 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 Vie portion of the Property transferred or assigned. Any and all approved successors and assigneas 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: a, Transfers to associations, including limited partnerships, limited liability companies, or joint ventures with other entities for the 75B-29 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 65865. 4.4 Enforcement, Notwithstanding Government Code Section 65865A, 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. 4.8 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 lim ted as follows 75B-30 (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. (u) 1f City rejects a settlement offer that Owner deems reasonable, then Owner may upon thirty (30) clays 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 inourred prior to the effective date of termination. 4.6 Sinding 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 Develapment Agreement is one of independent contractor and not agency, This Development Agreement does not create any third party beneficiary rights. 4.9 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 fallowing persons: If to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M-31 P.O. Sox 1988 Santa Ane, California 92702 75B-31 and City Attorney, City of Santa Ana 20 Civic Center Plaza M-29 P.O. Box 1988 Santa Ana, California 92702 If to Owner, to: Heritage Village OC 1945 Port Chelsea Place Newport Beach, CA 92669 Attention: General Counsel and Allen Matkins 1900 Main Street, 51h f=loor Irvine, 'CA 92614 Attention; William R. Devine 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 51 DEVELOPMENT OF THE PROPERTY. 5A 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. SAA Vested Right to Develop. Owner is hereby granted the vested right to develop the Project subject to the terms and 75B-32 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 theProject 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. 5A.1 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, 75B*33 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 Conskruction Co. v. Citv of Camarillo (1984) 37 Cal. 3d 465 that the failure of the parties therein to provide for the timing of development resulted in a lateradopted 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' 75B -r34 (i) Municipal caws and regulations which do not Interfere with Owner's vested rights todevelop and use the Property in accordance with Section 5.1 of this Development Agreement. Owner andits successors and assigns and all persons and entities in occupation or 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 other,+iise 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 75B{35 the operations of the Jol-n Wayne Airport (SNA) The avigation easement shall grant the right to enter or penetrate into or transmit through the airspace above, on or it 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. 5.6 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 75B-36 necessary, but shall include the timing for first and second phase construction and interim site improvements (i.e., landscaping, internal cirCLIlation) between the phases. The approved Phasing Plan must be implemented within six (6) months after completion of the first phase (1,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 Va-level garage that will contain 646 parking spaces, with another 18 spaces on the private drive. Parking is provided ata rate of approximately 1.9 parking stalls per unit, which includes guest and commercial parking. Also to be renovated within this phase is the 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 75BT37 units would be wrapped around a 6'l -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. 6.9 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, 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. 75B-38 regulations, orders, and decrees of the United States, the State of California, theCounty 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, sate, and local occupation, safety and health lads, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plurnbincu, 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 at seq., Government Code§ 4450 et seq., and the Unruh Civil Flights Act, Civil Code§ 51 et seri. (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 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. DEFAULT. 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" 75Br39 (a) V 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 DevelopmentAgreement; (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 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 75840 expensive does not excuse the performance of the obligation by the Owner (f) All other remedies at lave or in equity which are not inconsistent with the provisions of this Development Agreement are available to the parties to pursue in the eventthere is a breach. 7.3 Damages upon Termination. In no event shall Owner be entitled to any darnages 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. Y 8,1 Flight 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 B 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 providers 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 cr.ire or remedy or commence to cure or remedy and thereafter to pursue 75B-41 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 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 acguired 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 emended 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 75Br42 8.8 Condemnation or Insurance Proceeds. Nothing in this Development Agreement shall impair the rights of any Mortgagee, pdrsuant to its Mortgage, to receive insurance and/or condemnation proceeds which are otherwise payable to Owner granting such Mortgage. 83 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 Mortgageeshall;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 - 756.43 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. 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 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. 75Br44 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 goad faith. They will assist each other to the extent needed in the performance of the provisions of this Development Agreement. 9.6 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 render this Agreement is caused by floods, earthquakes, other Acts of God, fire's, 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. 910 Conflicts of L,aw. 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 66854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal 75Ba45 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 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. 75B46 IN WITNESS WHEREOF, this Development Agreement has been executed by the City of Santa Ana and by Owner. > :5 Dated this �� day of Gt; qi e,- ATTEST: I -7rV1k1V1. (alar(aHuizar,Huizar, Clerkt[18 COUncil APPROVED AS TO FORM: 'Dsg-Storck, Assistant City Attorney 2016, THE CITY OF SANTA ANA <�T)zt",j David Ca'vazos, City ManagL-r HERITAGE VILLAGE OC'LLC, a Delaware lire liability c pany By::: Name: Lto-c c - Title: RECORHEIM APPROVAL. itassan -Zy i, 1,Yecutive Director Planning & j eilding Agency 75B*47 CALIFORNIA ALL-PURPOSE ACKNOWLEDOMENT CIVIL CODE § 1189 A notary p relic or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and nct the truthfulness, accuracy, or validity of that document. State of California County of � J On _ �2. rn i1�' _. before me, �. �C -A `, . !G'LC��� ?�?'i'� ri 4rrl lc Date Here Insert Name and Title of the Officer ti personally appeared (}i1•V V i ri,fl�) �_. Na fs(s) of Signsr(s) who broved to me on the basis of satisfactory evidence to be the person(4 whose name,03 fsfare subscribed to the within instrument and acknowledged to me that helshekhey executed the same In h1.s/he0thalcsuthorized capaclty(iesj, and that by hfsfherlthelrsignature(sj'on the instrument the persdn(ay. or the entity upon behalf of which the person(a) acted, executed the instrument. I certify under PENALTY OF PERJURY under the lams of the State of California that the foregoing paragraph is true and correct. R05A A' MSES WITNESS m hand and official seal. .y Commission 2C57i29 y z Dlotary Public •California '> z Crane County MI COMM Exbirss fab 7. 2009 t Signature t _)_��� � � ' I�,E'Y� __.. Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this to, to an unintended document. Description of Attached Document Title or Type of Document: Number of Pages: Document. Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: _ -- Corporate Officer — Title(s); Partner — _- Limited - General Individual - Attorney in Fact Trustee Guardian or Conservator nlhter: Signer Is Representing' Signer's Name: Corporate Officer — Tide(s): _ Partner — Limited General Individual Attorney in Fact Trustee Guardian or Conservator Other: Signer Is Representing: _ X;G _,_.... -C _.: �.� 1`C.(:Ctix�x4 �Cy'z"-'.� ?`T-ai:�,",,'r'S,`t?;i."w^'v.G 2,+.c�.a;cl+z��.,, �4 'L.:=,t; �v�;.r•4, 0)201'. Mahonal Notary Assiclation 1-800-IJS NOTARY (1-300-870-5327) Item 11,5907 75B-48 ACKNOWLEDGMENT --- F A notary pu blic-- or other officer Mrii lating this cehlficete verifies only the identity of the individual wito signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California Orange ) County of On May 26, 2016 _____ before me, Ruth Flamenco, Notary Public (insert name and title of the officer) personally appeared Marc Chasman _ who proved to me on the basis of satisfactory avidence to be the person(s) whose names-)- ar�- subscribed to the within instrument and acknowledged to me that he/5hefttrey-e xecuted the same in hisWrtheir,authorized eapacity(e , and that by hlslber/thrrY signaturd(-e)-on the instrument the persun(0, or the entity upon behalf of which the person(a�ectad, 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 RUTH FIAMENCC WITNESS m hand and dfficlai seal. Commission a 2138790 y - Notary Public -California Orange County �` (rj M Comm. Expires Jan 8, 2020 Signature 't� L `tom-�'-'`- ! (Seat) 75B-49 Mumum Property Legal Description LEGAL DESC'MPTION THE L,�-NTD REFERRED TO HER=T BELOW IS SITU ATT -D D4 THE CITY OF SANTA ANA M-7NIYOF OFLANGEL. STATE OF C,-U-IFOKN1A.A-ND IS DESCRIBED FOLLOWS PARCEL 2, AS SHOWN ON E-�'�-,VIIBIT "B -T' AITACHED TO LOT LD4-=- ADTUST-MEN-, 97-023 RECORDED J—'UN-E it _1998ASLN5TR1aEE-2TNO. EXCEPT THOSE PORTION5 CON'TIED TO THE CM OF SANTA AINA FOR PUBLIC RIGHT-OFAVAY BY GF--V,TTDEZDRECORDED JTJN`E 18, 2616 .AS NSTRU%,QiTNO. 21110000289229 OF OFFICIAL RECORDS. FXCEK.TNG ALL OIL, OIL FIGHTS, NM7ERAL-S. MINERAL RIGHTS, ;ATURAL GAS RIGHTS AND OTHER FYDRocARBONNS BY N6T-ATSOEVE:,R XA%M BL%;Ov�"N THAT ^. LAY BE WITHIN OR UNDER THE ?ARCE L OF LA -ND H.EREDABO%'E DESCRfBED. TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, N[D;DVG a','LOKD;G AM) OPER. TLNG THEREFORE 3' -\ TD ST ORING Epi &ND RE -MOVING THE SAME FROM SAID LkND OF, AINTY OTHER LA,D- LNCLUMNr; TTIE RIGHT To ',VHPSTOCK OR DIRECTIONALLY DRELL AND 'M -'N": FROM[ LANDS OTHER THAN THOSE HE nLS� M -N ,REL,jABOYE DESCRIBED? OIL OR GAS W tNE1,S AND SHAFTS LNTO. TH-ROUGH OR ACROSS THE SUBSL7RFACE OF THE LAND IEEREDABO'a DESCRIBED, AND To BOTTOM SUCH -V'HI-FSTOCKED OR DrRFCT'ION,,1,LLV DRILLED WELLS. TUNNTELS A�TM SH.k-77S T-�-DFK AND BENEATH OR BEYOND FIE EXTEICOR. LDJITS THEREOF. AND TO REMML, RLTT--XNEL- EQUP, %UJNTTAD- RE-PAIF- DEEPEN AXD OPERATE A -N, -j' SUCH IM LS OR MLN -ES WITHOL-T. HQ -='-ER- TT�E RIGHT TO DRILL. Nff'`.E 'FACE Or - 'UPPER 504) FEET STORE- EXPLORE OR O?cR-XTF THROUGH THE SUR , Tfizz OF THE SUBSURFACE OF THE LAND DES( RIBED, AS RESE&VED BY =, IR-VLNE CO'. PAN -y r`;DEED F,ECOR,DEDOCTOBER l4_lq77LVBog��i2liSPAGE �9 997 OP OFFjCj-iLRFCOR;LLAJND THE IFA�tiH INDUSTRIAL COMPLEX rN A DEED RECORDED P—F('F%IBFR N-1 GE 191 OF OFFICIAL RECORDS ALSO EXCE?TC;G FROM THAT POR11OFNITINCI-LDED W17FX4 PARCEL 4 AS SHC)I.V-\- ON! ANUP PILED P4 BOOK 43 PAGE 34 OF PARCEL MAPS- Lb THE OFFICE OF THE COUNTY RECORDER OF ORANGE COb-114-Ty- CA-LIFORNLA- A -N -Y AN ALL WATER RIGi;TS OR -LVIER:-SIS Di T.VATERS RIGHTS AND ANY AND ALL C;EOTHEKNU'LL RIGHTS OR EN-rERESTS IN GEO-jH.-LRILkL RIGHTS, NO M-AT11R HOW ACQUIRED BY GKA-NJTGR. 1._'417 OWNED OR USED BY GF - _N -TOR rti CONNECTION WTT'i ORINITHRESPEC7 TO THE L. WHETHER SLCH WATER RIGHTS BE RIPAR12Cv, O'yHRLyI]NG, APPROPRIATIEVE, PERCOLATING -!THOU- VE- '--T TO E -TER UPON THE S - ACE pUSCRp-jI%-- OF, CONTRACTICAL- BUTT HO's ANY RIG; N URF OF THE LAND 2THE F-IERCISE OF SUCH RIGHTS. AS RESERVED BY THE IRI-DZE C9.'4PAY): U, DEED F.ECORDEF) OCTOBER 13 191�3�rBOOKILggt, PAGE 184 OF _OFFICLALRECORDS APN410-221-24ASD 430-221-01 75B -M dt _ NUMM Property Site Plan 75B-61 EXHIBIT C Public Art Plan 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 clays 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. 5. 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 t,mes, 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 ) 75B 52 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, prefabricatedwater or electrical features not created by the artist, and ornamental enhancements, d. Utility fees associated with activating etectrmc 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, 75Br53 LS I W4/16 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND HERITAGE VILLAGE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 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 55864 through 55859.5 to enter into development agreements with persons having legal or equitable Interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Amendment to the Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. This Amendment to the Development Agreement came before the Planning Commission for a duly noticed public hearing on November 14, 2015. The Planning Commission, on a vote of X:X, made a motion to recommend approval of the Amendment to the Development Agreement. D. Entering into this First Amendment to the Development Agreement would provide the City with significant benefits that are of regional significance, relate to existing deficiencies in public facilities, and require the owner of the Heritage Village to contribute toward public benefits. E. The City Council has held a noticed public hearing on this Ordinance and has considered all testimony presented thereto. F. The previously adopted and certified Final Environmental Impact Report EIR for the property, EIR No. 2015-01, including the Mitigation Monitoring Program, Findings of Fact and Statement of Overriding Considerations, have been previously approved and certified by this Council. G. The proposed project will not adversely affect the General Plan, as is expressly set forth in the Request for Council Action dated December 5, 2015, together Ordinance No. NS -XXX Page 1 of 3 75B-54 with all supporting documents, including but not limited to, proposed resolutions, which are incorporated herein by this reference. Section 2. The First Amendment to the Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City with such non -substantive changes as may be authorized by the City Manager and City Attorney, The Clerk of the Council is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. Section 3. 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 A5 TO FORM: Sonia R. Carvalho City Attorney By: Lisa Starck Assistant City Attorney Miguel A.Pulido Mayor 75B-55 Ordinance No, NS -XXX Page 2 of 3 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on 'and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Clerk of the Council City of Santa Ana Ordinance No. NS -XXX Page 3 of 3 75B-56 REQUEST FOR COUNCIL/ HOUSING AUTHORITY ;rp ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: HOUSING SUCCESSOR ANNUAL REPORT FOR FY 2015-16 — LOW AND MODERATE INCOME HOUSING ASSET FUND (STRATEGIC PLAN NO. 5, 1) CITY MANAG EXECU DIR CTOR E RECOMMENDED ACTION CITY COUNCIL ACTION Receive and file. HOUSING AUTHORITY ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Pursuant to the Dissolution Act, the City Council on January 9, 2012, designated the Housing Authority as the Successor Housing Agency to the dissolved Community Redevelopment Agency of the City of Santa Ana (RDA). Effective February 1, 2012, the Housing Authority retained the housing assets, duties, functions and obligations of the former RDA and continued to complete the housing development projects encumbered prior to the dissolution of the RDA. Senate Bill (SB) 341, signed by the Governor on October 1, 2013, amended the Health & Safety Code Section 34176 and addresses functions to be performed by the Housing Successor Agencies. This bill, effective January 2014, requires all housing successor agencies to provide an annual report to its governing body within six months after the end of the fiscal year (FY), starting with FY 2013-14. Among the requirements is an independent financial audit of the Low and Moderate Income Housing Asset Fund (LMIHAF), and information regarding specific housing financial data and activities. The independent financial audit of the LMIHAF is included in the City's Comprehensive Annual Financial Report (CAFR) for FY 2015-16, as prepared by the Finance and Management Services Agency and posted on the City's website at http:/Iwww.santa-ana.org/finance/cafr/defauIt.asp. 80A-1 Housing Successor Annual Report FY 2015-16 December 20, 2016 Page 2 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. Robe'&C` Cortez Deputy City Man ger City Manager's Office SG/NV/sb Exhibit: 1. Housing Successor Annual Report FY 2015-16 80A-2 HOUSING SUCCESSOR ANNUAL REPORT REGARDING THE LOW AND MODERATE INCOME HOUSING ASSET FUND FOR FISCAL YEAR 2015-2016 PURSUANTTO CALIFORNIA HEALTH AND SAFETY CODE SECTION 34176.1(f) FOR THE HOUSING AUTHORITY OF THE CITY OF SANTA ANA This Housing Successor Annual Report (Report) regarding the Low and Moderate Income Housing Asset Fund (LMIHAF) has been prepared pursuant to California Health and Safety Code Section 34176.1(f) and is dated as of December 20, 2016. This Report sets forth certain details of the Housing Authority of the City of Santa Ana (Housing Successor) activities during Fiscal Year 2015-2016 (Fiscal Year). The purpose of this Report is to provide the governing body of the Housing Successor an annual report on the housing assets and activities of the Housing Successor under Part 1.85, Division 24 of the California Health and Safety Code, in particular sections 34176 and 34176.1 (Dissolution Law). The following Report is based upon information prepared by Housing Successor staff and information contained within the independent financial audit of the Low and Moderate Income Housing Asset Fund, as incorporated in the City of Santa Ana Comprehensive Annual Financial Report for Fiscal Year 2015-2016 (Fiscal Year) as prepared by White Nelson Diehl Evans LLP (Audit), which Audit is separate from this annual summary Report; further, this Report conforms with and is organized into sections I. through XI., inclusive, pursuant to Section 34176.1(f) of the Dissolution Law: Amount Deposited into LMIHAF: This section provides the total amount of funds deposited into the LMIHAF during the Fiscal Year. Any amounts deposited for items listed on the Recognized Obligation Payment Schedule (ROPS) must be distinguished from the other amounts deposited. II. Ending Balance of LMIHAF: This section provides a statement of the balance in the LMIHAF as of the close of the Fiscal Year. Any amounts deposited for items listed on the ROPS must be distinguished from the other amounts deposited. III. Description of Expenditures from LMIHAF: This section provides a description of the expenditures made from the LMIHAF during the Fiscal Year. The expenditures are to be categorized. IV. Statutory Value of Assets Owned by Housing Successor: This section provides the statutory value of real property owned by the Housing Successor, the value of loans and grants receivables, and the sum of these two amounts. EXHIBIT 1 HOUSING AUTHORITY OF THE CITY OF SANTA"5/16 Page 1 V. Description of Transfers: This section describes transfers, if any, to another housing successor agency made in previous Fiscal Year(s), including whether the funds are unencumbered and the status of projects, if any, for which the transferred LMIHAF will be used. The sole purpose of the transfers must be for the development of transit priority projects, permanent supportive housing, housing for agricultural employees or special needs housing. VI. Project Descriptions: This section describes any project for which the Housing Successor receives or holds property tax revenue pursuant to the ROPS and the status of that project. VII. Status of Compliance with Section 33334.16: This section provides a status update on compliance with Section 33334.16 for interests in real property acquired by the former redevelopment agency prior to February 1, 2012. For interests in real property acquired on or after February 1, 2012, provide a status update on the project. VIII. Description of Outstanding Obligations under Section 33413: This section describes the outstanding inclusionary and replacement housing obligations, if any, under Section 33413 that remained outstanding prior to dissolution of the former redevelopment agency as of February 1, 2012 along with the Housing Successor's progress in meeting those prior obligations, if any, of the former redevelopment agency and how the Housing Successor's plans to meet unmet obligations, if any. IX. Income Test: This section provides the information required by Section 34176.1(a)(3)(B), or a description of expenditures by income restriction for five year period, with the time period beginning January 1, 2014 and whether the statutory thresholds have been met. However, reporting of the Income Test is not required until 2019. X. Senior Housing Test: This section provides the percentage of units of deed -restricted rental housing restricted to seniors and assisted individually orjointly by the Housing Successor, its former redevelopment Agency, and its host jurisdiction within the previous 10 years in relation to the aggregate number of units of deed -restricted rental housing assisted individually or jointly by the Housing Successor, its former Redevelopment Agency and its host jurisdiction within the same time period. For this Report the ten-year period reviewed is January 1, 2006 to January 1, 2016. XI. Excess Surplus Test: This section provides the amount of excess surplus in the LMIHAF, if any, and the length of time that the Housing Successor has had excess surplus, and the Housing Successor's plan for eliminating the excess surplus. This Report is to be provided to the Housing Successor's governing body by December 31, 2016. In addition, this Report and the former redevelopment agency's pre -dissolution HOUSING AUTHORITY OF THE CITY OF SANTA�Iyh► �1FY 7,p15/16 Page 2 Implementation Plans are to be made available to the public on the City's website (http://www.santa-ana.or.q/cda/oversight.asi).) AMOUNT DEPOSITED INTO LMIHAF A total of $312,836 was deposited into the LMIHAF during the Fiscal Year. Of the total funds deposited into the LMIHAF, a total of $0 was held for items listed on the ROPS. II. ENDING BALANCE OF LMIHAF At the close of the Fiscal Year, the ending balance in the LMIHAF was $10,193,271 of which $291,230 is held for items listed on the BOPS. III. DESCRIPTION OF EXPENDITURES FROM LMIHAF The following is a description of expenditures from the LMIHAF by category: The independent financial audit of the Low and Moderate Income Housing Asset Fund includes an additional $123,701 for bad debt expenses for loans receivable, for a total expenditure of $374,401. The independent financial audit of the Low and Moderate Income Housing Asset Fund includes an additional $1,267,028 for the loss on sale of land for properties transferred to the developer as required by the disposition and development agreement, for a total expenditure of $2,012,436. Including the additional items from footnotes 1 and 2 above, the total LMIHAF per the audit is $25386,837. HOUSING AUTHORITY OF THE CITY OF SANTAIB;KY75/16 Page 3 IV. STATUTORY VALUE OF ASSETS OWNED BY HOUSING SUCCESSOR IN LMIHAF Under the Dissolution Law and for purposes of this Report, the "statutory value of real property" means the value of properties formerly held by the former redevelopment agency as listed on the housing asset transfer schedule approved by the Department of Finance as listed in such schedule under Section 34176(a)(2), the value of the properties transferred to the Housing Successor pursuant to Section 34181(f), and the purchase price of property(ies) purchased by the Housing Successor. Further, the value of loans and grants receivable is included in these reported assets held in the LMIHAF. The following provides the statutory value of assets owned by the Housing Successor. V. DESCRIPTION OF TRANSFERS The Housing Successor did not make any LMIHAF transfers to other Housing Successor(s) under Section 34176.1(c)(2) during the Fiscal Year. VI. PROJECT DESCRIPTIONS The following is a description of project(s) for which the Housing Successor receives or holds property tax revenue pursuant to the ROPS as well as the status of the project(s): HOUSING AUTHORITY OF THE CITY OF SANT4DWAFY&015/16 Page 4 VII. STATUS OF COMPLIANCE WITH SECTION 33334.16 Section 34176.1 provides that Section 33334.16 does not apply to interests in real property acquired by the Housing Successor on or after February 1, 2012; however, this Report presents a status update on the project related to such real property. With respect to interests in real property acquired by the former redevelopment agency prior to February 1, 2012, the time periods described in Section 33334.16 shall be deemed to have commenced on the date that the Department of Finance approved the property as a housing asset in the LMIHAF; thus, as to real property acquired by the former redevelopment agency now held by the Housing Successor in the LMIHAF, the Housing Successor must initiate activities consistent with the development of the real property for the purpose for which it was acquired within five years of the date the DOF approved such property as a housing asset. The following provides a status update on the real property or properties housing asset(s) that were acquired prior to February 1, 2012 and compliance with five-year period: HOUSING AUTHORITY OF THE CITY OF SANTA"X215/16 Page 5 and/or sale of The following provides a status update on the project(s) for property or properties that have been acquired by the Housing Successor using LMIHAF on or after February 1, 2012: VIII. DESCRIPTION OF OUTSTANDING OBLIGATIONS PURSUANT TO SECTION 33413 Replacement Housing: According to the FY 2010 — FY 2015 Implementation Plan for the former redevelopment agency, the following replacement housing obligations were transferred to the Housing Successor: One (1) very -low income five -bedroom unit, which was removed in 2005. The replacement housing obligation transferred to the Housing Successor was fulfilled in a previous fiscal year with the WBBB project that accommodated a five -bedroom unit within the site. At the end of Fiscal Year 2015-2016, the Housing Successor has met all replacement housing obligations transferred from the former redevelopment agency. Inclusionary/Production Housing. According to the FY 2010 — FY 2015 Implementation Plan for the former redevelopment agency, no Section 33413(b) inclusionary/production housing obligations were transferred to the Housing Successor. The former redevelopment agency's Implementation Plans are posted on the City's website at http://www.santa- ana,org/cda/oversiqht.asp. IX. EXTREMELY -LOW INCOME TEST Section 34176.1(a)(3)(B) requires that the Housing Successor must require at least 30% of the LMIHAF to be expended for development of rental housing affordable to and occupied by households earning 30% or less of the AMI. If the Housing Successor fails to comply with the Extremely -Low Income requirement in any five-year report, then the Housing Successor must ensure that at least 50% of the funds remaining in the LMIHAF be expended in each fiscal year following the latest fiscal year following the report on households earning 30% or less of the AMI HOUSING AUTHORITY OF THE CITY OF SANTPn WAFY&15/16 Page 6 until the Housing Successor demonstrates compliance with the Extremely -Low Income requirement. This information is not required to be reported until 2019 for the 2014 — 2019 period. X. SENIOR HOUSING TEST The Housing Successor is to calculate the percentage of units of deed -restricted rental housing restricted to seniors and assisted by the Housing Successor, the former redevelopment agency and/or the City within the previous 10 years in relation to the aggregate number of units of deed -restricted rental housing assisted by the Housing Successor, the former redevelopment agency and/or City within the same time period. If this percentage exceeds 50%, then the Housing Successor cannot expend future funds in the LMIHAF to assist additional senior housing units until the Housing Successor or City assists and construction has commenced on a number of restricted rental units that is equal to 50% of the total amount of deed -restricted rental units. The following provides the Housing Successor's Senior Housing Test for the 10 year period of January 1, 2006 to January 1, 2016: XI. EXCESS SURPLUS TEST Excess Surplus is defined in Section 34176.1(d) as an unencumbered amount in the account that exceeds the greater of one million dollars ($1,000,000) or the aggregate amount deposited into the account during the Housing Successor's preceding four Fiscal Years, whichever is greater. The following provides the Excess Surplus test for the preceding four Fiscal Years: HOUSING AUTHORITY OF THE CITY OF SANTA 8"Yj.7 5/16 Page 7 The LMIHAF does not have an Excess Surplus. (Refer to calculation below.) Fund Balance — June 30, 2016 $46,541,115 Less Unavailable Amounts: Advance to private -purpose trust fund ( 4,751,291) Community development ( 38,534,774) Land held for resale ( 3,255,050) Available Low Income Housing Funds Limitation (Greater of $1,000,000 or Four Years Deposits): Aggregate amounts deposited for preceding four fiscal years 2012-2013 506,303 2013-2014 1,496,182 2014-2015 2,329,877 2015-2016 312,837 Total deposits for the preceding four fiscal years 4,645,199 Base limitation 1,000,000 Greater Amount 4,645,199 Computed Excess Surplus — June 30, 2016 4 The FY 2015/16 beginning balance is restated due to the reclassification of the long-term loans receivable from deferred inflows of resources, unavailable revenue, to an allowance for uncollectible accounts. HOUSING AUTHORITY OF THE CITY OF SANTAADFyk- F' Page 8 R ACTON CITY COUNCIL MEETING DATE: 20, 2016 TITLE: APPROVAL OF CONDITIONAL LOAN COMMITMENT AND AWARD OF $6,195,000 OF AFFORDABLE HOUSING FUNDS TO AMCAL MULTI -HOUSING, INC FOR THE FIRST STREET APARTMENTS PROJECT {STRATEGIC PLAN NO. 5, 3C} CITYMANAC R EXECUTIVE.D-�I''brrTOR r CITY COUNCIL ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager to execute a conditional loan commitment letter for $2,600,000 of inclusionary housing in -lieu fees anticipated from the Heritage Village OC, LLC in order to reduce the $8,795,000 previously approved by City Council on April 19, 2016, that will be contingent on the City's actual receipt of an in -lieu fee payment of $2,600,000 from Heritage Village OC, LLC. 2. Authorize the City Manager/Executive Director and the City Attorney to draft loan agreements for future City Council consideration in an amount not to exceed $2,600,000 for the First Street Apartments Project. HOUSING AUTHORITY ACTION Award $6,195,000 in Housing Successor Agency funds to AMCAL Multi -Housing, Inc for the First Street Apartments Project located at 1440 East First Street in Santa Ana as provided in the pre -commitment letter. 2. Authorize the City Manager/Executive Director and the City Attorney to draft loan agreements for future Housing Authority consideration in an amount not to exceed $6,195,000 for the First Street Apartments Project. Award of Affordable Housing Funds to AMCAL December 20, 2016 Page 2 DISCUSSION On April 19, 2016, City Council approved a conditional loan commitment of $8,795,000 of inclusionary housing in -lieu fees to AMCAL Multi -Housing, Inc. (AMCAL) for their First Street Apartments Project by a vote of 6:0. The $8,795,000 came as a request by Heritage Village OC, LLC (Heritage Village) to allocate the in -lieu fees from their Heritage Village project to AMCAL. On August 29, 2016, the City of Santa Ana received a second request from the Heritage Village to pledge City existing affordable housing funds to AMCAL for the First Street Apartments Project (Exhibit 1) resulting from the Heritage Village's request to phase their total in -lieu fee payment. As such, the Heritage Village requests the City fund the difference between the $8,795,000 in - lieu fee and the initial Heritage Village project phase one payment, which will be approximately $2,600,000. On November 14, 2016, AMCAL submitted a letter (Exhibit 2) to the City stating, "We request that any agreement to allow the deferral of the payment of in -lieu fees [from the Heritage Village] be conditioned upon a commitment from the City to use existing City housing funds to bridge the in - lieu fees payable in the future by the Heritage Village development. A commitment by the City to bridge the in -lieu fees would allow the First Street affordable project to proceed as currently scheduled and not suffer any further delays." The City's past practice is to issue Request for Proposals (RFP) for affordable housing funds. The issuance of an RFP allows for transparency and open competition among multiple affordable housing developers throughout Orange County and Southern California who want to develop affordable housing in our community. Each year, developers rely on the City to allow for open competition for affordable housing funds. On December 20, 2016, the City Council will consider a recommended action for the Heritage Village to amend the Development Agreement for their Heritage Village project to allow for phasing of their total in -lieu fee payment of $9,695,725.60 required under the City's Housing Opportunity Ordinance. If the Development Agreement is approved, this would cause a delay in the development of AMCAL's First Street Apartments Project. Therefore, staff recommends an award of $6,195,000 to AMCAL for the First Street Apartments Project (Exhibit 4) to bridge $2,600,000 of inclusionary housing in -lieu fees anticipated to be received from the Heritage Village (Exhibit 5) for the first phase of their project. This pre -commitment letter will provide an opportunity for AMCAL to move forward with the First Street Project to obtain their necessary tax credit financing. The remainder of the $7,095,725.60 of in -lieu fees anticipated from the Heritage Village will be deposited into the City's Inclusionary Housing Fund after the second and third phase of their project, and these remaining funds would be issued through the RFP process. The City currently has $3,448,697 in it's Inclusionary Housing Fund and approximately $6,400,000 in Housing Successor Agency funds. The requests by the Heritage and AMCAL to use $6,195,000 in City existing housing funds contingent on receipt of $2,600,000 from the first phase of the Heritage Village project, will leave a balance of Inclusionary Housing Funds Award of Affordable Housing Funds to AMCAL December 20, 2016 Page 3 available to provide affordable housing in the City of Santa Ana in addition to the remainder of the in -lieu fees expected from the Heritage Village. Project Description AMCAL's proposed project, located at 1440 East First Street in Santa Ana (Exhibit 3), will provide 69 units of affordable workforce housing. The residential units will be located within six buildings. The rental units (less one manager's unit) are 100% affordable to family households earning between 30% and 60% of the Area Median Income (AMI). The unit mix currently consists of six four-bedroom units, 28 three-bedroom units and 35 two-bedroom units (one being a manager's unit). Eight of the units will be assisted by the Santa Ana Housing Authority's Project -Based Voucher Program. On-site amenities will include a community room and amenity space including tot lots/play areas for children, outdoor seatting, BBQs, a flex play space and planters. The community room will be incorporated into the development, providing a computer laboratory, kitchen, activity room for resident activities, and office space for property management and social services staff. AMCAL will engage the non-profit organization LifeSTEPS to provide free on-site social services to project tenants. Services will be provided in the form of classes and workshops with the subject matter tailored by a social service coordinator to the specific needs of the community. This pre -commitment of $6,195,000 in Housing Successor Agency funds will require deeper affordability (units affordable to lower-income households at 30% AMI) to ensure the City complies with regulatory requirements from the California Department of Housing and Community Development. The City's Housing Successor Agency funds will be provided by means of a 55 -year City loan carrying a 3 percent interest rate and payable by residual receipts. The loan agreements for these funds will be conveyed to City Council for approval prior to execution in accordance with the funding requirement. Execution of these loan agreement documents will be contingent upon completion of the National Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA) requirements. 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), 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 Pre -Commitment Loan As noted above the item is a funding commitment for which the City has available in the Low and Moderate Income Housing Asset fund balance $6,195,000. 1W Award of Affordable Housing Funds to AMCAL December 20, 2016 Page 4 Conditional Loan Commitment Upon completion of contract covenants, the City may receive In -Lieu Fees totaling $2,600,000 and will be deposited for appropriation in the Inclusionary Housing Fund Inclusionary Housing Fees revenue account (no. 41718002-57896). Upon receipt of funds, an appropriation adjustment will be brought forth to the Mayor and City Council for consideration and subsequent approval. Robert C. Cortgz , Deputy City Ma an ger City Manager's Office APPROVED AS TO FUNDS AND ACCOUNTS: a vutierrez xecuuco Director Finance and Management Services Agency Exhibits: 1. Letter from Heritage Village OC, LLC 2. Letter from AMCAL 3. 1440 East First Street Site Map 4. Pre -Commitment Letter 5. Conditional Loan Commitment Letter Allen Matkins Leck Gamble Mallory & Natsis LLP Allen Matldns Attor1900 yMain Law 1900 n Street, 5t" Floor I hvine, CA 92614-7321 Telephone: 949.553.1313 1 Facsimile: 949.553.8354 www.allemnatkins.com William R. Devine E-maih wdevine@allemnatkins.com Direct Dial: 949.851.5412 File Number: 372942-00005/OC1119549.02 August 19, 2016 Sonia R. Carvalho City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92701 Re: Heritage Village OC, LLC Dear Ms. Carvalho: I am writing on behalf of my client Heritage Village OC, LLC ("Developer") to propose a resolution of the matter relating to the timing of payment of the affordable housing in lieu fees that the Developer is obligated to pay in conjunction with development of the Heritage Village Project ("Project"). As you know the Project includes a number of buildings that will be developed in three phases, as detailed in the Development Agreement. Pursuant to Section 4-1904(c)(3) of the City Housing Opportunity Ordinance ("HOO") any applicable affordable housing in lieu fee is to be paid prior to issuance of the first building permit for any portion of a residential project. As we have discussed previously, Developer always interpreted the phrase "any portion" to have the same meaning as "each phase" since each phase was a portion of the Project. However, when discussing the phased payment of the in lieu fees with City Staff, City Staff took the position that the HOO required payment of 100% of the affordable housing in lieu fees prior to issuance of the first building permit for Phase 1 of the Project. Based on this interpretation by City Staff it was determined that the only way to resolve the matter was to pursue an amendment to the HOO that would specifically provide for phased payment of in lieu fees for a phased project. Following discussions with City Staff on this matter the Developer filed an application for such an amendment and began the amendment process. During the Planning Commission hearing regarding this matter some objections were raised regarding such amendment. Our understanding is that most of these objections were related to how it might impact the timing of development of the proposed Ameal Affordable Housing Project ("Amcal Project"). Our understanding is that the developers of the Amcal Project plan to seek tax credit financing for their project in the first quarter of 2017. We also understand that in order to obtain the tax credit financing Amcal will need a letter from the City pledging up to $8.75 million toward the cost of development of the Ameal Project. We understand that Amcal is looking for a pledge of $8.75 million from the City toward Ameal's cost of development of their project. We also understand that the City has approximately $2.9 million in its in lieu affordable housing fee fund Los Angeles I Orange County I San Diego I Century City I San Francisco M56 Allen Matkins Leek Gamble Mallory & Natsis LLP Attomeys at Law Sonia R. Carvalho August 19, 2016 Page 2 and, as successor agency to the City's Redevelopment Agency, has approximately $3.5 million in its Low and Moderate Income Housing Fund ("Housing Fund"). It is anticipated that the first phase of the Heritage Village Project will obtain its first building permit toward the end of 2016. At that time the affordable housing in lieu fee that would be owed by the Developer for just the first phase of the Project would be approximately $2.6 million. Thus, following payment by the Developer of its in lieu fees for the first phase of development, the City will have on hand a total of about $9 million that it can utilize for affordable housing development. At that time the City would be able to provide the pledge letter needed by Ameal for purposes of obtaining its tax credit financing. Subsequent to that, the Developer will make additional affordable housing in lieu fee payments in conjunction with phases 2 and 3 of the Project. This will help replenish the City's in lieu fee fund. We are aware that some questions have arisen regarding the ability of the City to utilize the $3.5 million in its Housing Fund for the purpose described above. We have reviewed California's Community Development and Housing laws regarding the dissolution of redevelopment agencies and the use by successor agencies of funds taken over from dissolved redevelopment agencies. Based on our review it seems clear that the City can use these funds for the purposes described above. Assembly Bill 1793 was adopted in 2014 and amended section 34176.1 of the Health & Safety Code relating to redevelopment and, in particular, relating to funds received from successor agencies and how those funds may be used. Under existing law a city that authorizes the creation of a redevelopment agency, such as Santa Ana, may elect to retain the housing assets and functions previously performed by the redevelopment agency. The City has elected to do so. Existing law requires that any funds transferred to a city assuming the housing functions of the former redevelopment agency, together with any funds generated from housing assets, be maintained in a separate Housing Fund to be used in accordance with applicable housing related provisions of state law. Section 34176.1 creates an exception to use of Housing Funds. Instead of being subject to the provisions of the Community Redevelopment Law, Section, 34176.1 specifically provides for how those funds may be used. In particular, Section 34176. 1 (a)(3)(A) states that the housing successor shall expend all funds remaining in the Housing Fund, with the exception of certain minimal amounts for administrative expenditures and homeless prevention, for the development of housing affordable to and occupied by households earning 80% or less of the area median income. hi addition, pursuant to Section 34176.1(d), if a housing successor has an excess surplus, the housing successor shall encumber the excess surplus for the development of affordable housing or transfer the funds to an adjacent successor agency. If the housing successor fails to do either one of these then the excess funds will need to be transferred to the Department of Housing and Community Development. Based on all the above we feel that the concerns of the City, the Developer and Amcal can be met by taking the following steps: First, Amcal request that the City use both its in lieu fee fund and its Housing Fund toward the proposed Amcal project. Second, the City agrees that it can utilize both its in lieu fee fund and its Housing Fund, along with the Developer's payment of the first phase affordable housing in lieu fees, to provide a pledge letter on behalf of Amcal in support of its tax credit financing request. Third, the City and Developer enter into an agreement whereby both Allen Matkins Leck Gamble Mallory & Natsis LLP Attomeys at Law Sonia R. Carvalho August 19, 2016 Page 3 parties agree that the Heritage Village affordable housing in lieu fees may be paid in phases consistent with the development phases of the Project. We are confident that the above proposal will resolve the concerns of the City, the Developer, and Amcal. We look forward to working out the terms of the necessary agreements to implement this proposed resolution. ktIA N FOON liffi Very truly yours, William R. Devine 17862 E. 17 T STREET, SUITE 209 TUSTIN, CA 92780 www.AmcALHousiNG.com November 14, 2016 Chairman Lynette Verino and Santa Ana Planning Commission City of Santa Ana 20 Civic Center Plaza P.O. Box 1988, M31 Santa Ana, CA 92701 RE: Heritage Village Mixed -Use Development Proposed First Amendment to Development.Agreement No 20L5-03 Planning Commission Meeting, November 14, 2016 Dear Lynnette Verino and Members of the Planning Commission: As you know, AMCAL Multi -Housing, Inc. (AMCAL) has been working in partnership with the City of Santa Ana for approximately the past two years to develop First Street Apartments — 69 units of high quality affordable housing for working families located at 1440 East First Street. As part of the City approved entitlements, we worked closely with members of the community and the Planning Commission to incorporate design feedback and thoughtful preferences, including 4 bedroom units for large families. As you also know, the proposed development is dependent on receipt of approximately $8.795 million of in -lieu fees from that Heritage Village Mixed -Use Development. The proposed amendment to the Heritage Village Development Agreement, allowing the payment of in -lieu fees over time will result in a significant delay in the commencement of construction of the First Street affordable housing project. While we fully understand and appreciate the Heritage Village developer's desire to pay the in -lieu fees over time, we believe it is critical that any action of the Planning Commission not jeopardize the viability of the East First Street affordable development, As such, we request that any agreement to allow the deferral of the payment of in-Geu fees be conditioned upon a commitment from the City to use existing City housing funds to bridge the in -lieu fees payable in the future by the Heritage Village development, .A commitment by the City to bridge the in -lieu fees would allow the First Street affordable project to proceed as currently scheduled and not suffer any further delays. The need for affordable housing in the City of Santa Ana remains at crisis levels and we believe the Commission should not take any action which would delay the production of the 69 units of affordable housing produced by the First Street project. Thank you for your consideration. 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SD -16 R1 w Rt R1 R1 at R4 P M2+ 5MR— ST Rt R1 R1 casp at M2 R1 Ri R1 'a3nRl R1 Rt x R4 R1 R1 at mt mt M1 Al GENfflALAGRWLTURALI CR OxvIMD ALPoE31DENl1AL R1 SNGLEFAMILYF DE A- -13 FAMNGMODIRCAWN GC GOVENMENTCEJTE2 R2 TMFAMILYFESDENCE C -SM CCMMBFUALSDUIH MAIN Mt LIGiTINDUSTRAL m MULTIUDENSTVMULi1PLE Ct CCMMUNITVGOMME AL M2 HFAVYINDUSTRAL FAMILYT DRNCE C1 -MD COMM. ODMM9SIAI/MU931M DISTRICT MO MILITARIOPRt ONS F4 SJBUREANARARIMENTS C2 GBIEPALOOMME Al- 0 OPIA SACE FE RADENTALETATE 0 CENT LBUSNE55 P WAFE530NAL SD SFOHCDEVE_OFMERT ClA CEJTRALBUBNM,ARIISTMLIAGE FCD PIANNE➢ COMMUNITY DLVE.OPMBT S° =SCPIAN C1 RANNRD54OPRNGCEJ7ER PANNEDRSDENTIALDtV PMENT C5 ARIERALCOMME OAL GPA 2016-1 & AA 2016-1 ?`�S AMCAL FIRST STREET FAMILY APARTMENTS 1440 EAST FIRST STREET - - =500 FST 1"= 1000 FffT P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT 3 80B-11 ,•D- Pre -Commitment Letter for $6,195,000 December 20, 2016 AMCAL 1440 Santa Ana Fund, L.P. AMCAL Multi -Housing, hic. 2082 Michelson Drive, Suite 306 Irvine, CA 92612 Attention: Mario Turner SUBJECT: 69 Unit Multi -Family Housing Project 1440 East First Street, Santa Ana, California Dear Mr. Turner, AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") requested financial assistance in connection with the proposed development of a 69 unit affordable housing complex to be located at 1440 East First Street, Santa Ana, California ("Project"). The City of Santa Ana ("City") and the Housing Authority of the City of Santa Ana ("Housing Authority") has reviewed the Developer's request for assistance and at the City Council/Housing Authority meeting on December 20, 2016, the Housing Authority Board authorized and approved issuance of this pre -commitment letter evidencing the preliminary award of $6,195,000 of funds to the Project (the "Agency Assistance"), which Agency Assistance shall be funded exclusively from the Low and Moderate Income Housing Asset Fund (the "LMIHAF") held by the Housing Authority of the City of Santa Ana acting as the Housing Successor Agency (the "Agency"). The City, Agency and the Developer have mutually agreed upon the pre -commitment of Agency Assistance in the maximum amount of $6,195,000. The purpose of this letter is to provide a pre -commitment from the Agency for a loan of up to $6,195,000 ("Agency Loan") from the LMIHAF held by the Housing Successor Agency. The Agency intends that this letter evidence the Agency's pre -commitment of the Agency Assistance to the Developer for the Project subject to the conditions described below. The loan agreements for these funds require City Council/Housing Authority approval prior to execution by the Developer and the Agency. The amount of the proposed Agency Loan has been determined based upon the City and Agency's review of the Developer's request for the receipt of the Agency Assistance and the development proforma and projected cash flows for the Project submitted by the Developer to the City/Agency as of March 18, 2016 ("Proforma"). The Housing Authority's Executive Director has authority to approve revised development proformas and projected cash flows for the Project; provided, however, that the Agency Assistance is not materially increased or extended. In relation to this Agency Loan, the City Council approved a conditional, pre -commitment loan of up to $8,795,000 on April 19, 2016 funded exclusively from inclusionary housing in -lieu fee payments made pursuant to the City's Housing Opportunity Ordinance (Article XVIII.I of Chapter 41 of the Santa Ana Municipal Code) by the market rate developer of that certain mixed-use 1 AMCAL 1440 Santa Ana Fund, L.P. December 20, 2016 Page 2 development to be located at 2001 East Dyer Road, Santa Ana, California (the "In -Lieu Fee"). The Developer and the City agree that this pre -commitment from the Agency for a loan of up to $6,195,000 from the LMIHAF held by the Housing Successor Agency releases the City of its commitment of the same amount in the conditional, pre-cormniarrent loan approved by City Council on April 19, 2016 from funds to be received by the City from the In -Lieu Fee at a fature date. As such, the conditional, pre -commitment loan of up to $8,795,000 approved by City Council on April 19, 2016 will be reduced to a conditional, pre -commitment loan of $2,600,000, subject to the conditions described in the conditional, pre-cotmnitment letter issued to the Developer on May 31, 2016. The Developer's Project is intended to serve, in part, a target population of Very -Low and Extremely -Low Income persons using LMIHAF from the Agency, pursuant to California Health and Safety Code Section 34176.1. Section 34176.1(a)(3)(B) requires that the Agency must require at least 30% of the LMIHAF to be expended for development of rental housing affordable to and occupied by households earning 30% or less of the, Area Median Income ("AMI"). If the Agency fails to comply with the Extremely -Low Income :requirement in any; five-year report, then the Agency must ensure that at least 50% of the funds remaining in the LMIIIAF be expended in each fiscal year following the latest fiscal year following the report on households earning 30% or less of the AMI until the Agency demonstrates compliance with the Extremely -Low Income requirement. In order for the Agency to meet this five-year Extremely Low Income Test, the, Agency and the Developer have mutually agreed that at least 50% of the units in the project will be affordable to and occupied by households earning 30% or less of the AMI. The Agency Loan, should it be issued, will have the following terms: • $6,195,000 principal; amount, oras much thereof as is disbursed for acquisition costs and hard and soft costs in constructing the Project;' • 3% simple interest per annum; • Repayment from 50% of Residual Receipts (pro -rata with payments due in connection with other financing provided by the City) (after payment of operating expenses, debt service, any deferred developer fee, and partnership fees to be described in the Agreement) with the remaining 50% to be disbursed to the Developer; • Remaining, principal and accrued interest due upon the 55th anniversary of the issuance of Certificate of Occupancy and/or final building permits or earlier upon sale, refinancing or default. Additionally, the Agency will receive 50% of the net proceeds received from any sale or refinancing of the Project, after payment of outstanding debt and payment in full of any deferred developer fee and establishment of any reserves and transaction costs; and • Cost savings from the Project, if any, will be applied first to pay down the Loan, subject to compliance with the Tax Credit Allocation Committee ("TCAC") Regulations and California Health and Safety Code. AMCAL 1440 Santa Ana Fund, L.P. December 20, 2016 Page 3 The Agency's obligation to provide the Agency Loan to the Project are subject to each of the following conditions: 1. Review and approval of the documents evidencing the Loan by the Housing Authority of the City of Santa Ana acting as the Housing Successor Agency. 2. Compliance with California Health and Safety Code and applicable regulations set forth in Section 34176. 3. Compliance with and completion of an environmental review of the Project pursuant to the California Environmental Quality Act ("CEQA") and approval thereof. 4. The funding of $6,195,000 is from the Low and Moderate Income Housing Asset Fund which requires legal restrictions which the Agency cannot amend or repeal. 68 of the 69 "Housing Units" at the Project shall and will be restricted to "Affordable Rent" as defined by the TCAC Regulations for a period not less than 55 years pursuant to conditions, covenants and restrictions recorded against the Project in the Official Records, County of Orange, California. 34 of the 68 Housing Units at the Project shall and will be restricted to households earning 30% or less of the AMI. In the event that the Agency uses funds that are not so restricted, the Agency and the Developer may reasonably determine that a lesser number of Housing Units at the Project should be restricted to household earning 30% or less of AMI is necessary to cause the Project to be competitive for tax credit financing and/or to be financially viable. One (1) Housing Unit will be rented to an on-site property manager; the manager's unit will not be rent -restricted. 5. The Loan Agreement shall provide that each of the following conditions shall be met prior to the disbursement of any portion of the Loan: a. All grading permits shall have been issued and the City shall have issued a letter stating that building permits are ready to issue, subject only to payment of fees and the completion of grading of the Project site. b. Developer shall have secured all necessary financing and funding for the construction and operation of the Project. Such financing and funding shall be sufficient to pay all Project development costs, through lease -up, as set forth in a final budget consistent with the approved Proforma (or as otherwise approved by the City/Agency). C. The Developer shall have provided evidence to the City/Agency that the Developer has obtained insurance policies and certificates or endorsements acceptable to the City/Agency, as described in the Loan Agreement. d. The Developer shall have provided construction security in favor of the Agency, which may include a completion guarantee from AMCAL Multi -Housing, Inc. and/or a letter of credit and/or performance & payment bonds from the general contractor for the Project (or some combination of these), in an amount sufficient to ensure the Project will be completed and AMCAL 1440 Santa Ana Fund, L.P. December 20, 2016 Page 4 placed in service within the time set forth in the Project schedule approved by the City/Agency. e. Developer shall submit and obtain Executive Director of the Housing Authority's approval of the construction contract, Developer's limited partnership agreement for the limited partnership entity to be formed to own and operate the Project, and management, marketing and tenant selection plans for the Project. 6. The Agency's obligation to provide the Loan is and shall remain subject to all covenants, conditions, and restrictions set forth in the Loan Agreement, and in particular Agency's analysis of the available funding sources and development and operating costs of the Project and the overall economic feasibility of the Project. This pre -commitment letter for the project will expire two>(2) years from issuance of the letter to the Developer. The Developer and the Agency agree in the Loan Agreement that the provision of any funds to the Project is and shall be conditioned on the Agency's determination to proceed with, modify or cancel the Agency Assistance based on the results of a subsequent CEQA environmental review and the outcome of a Subsidy Layering Review. If you have any questions or require additional information regarding this letter, please contact Judson Brown, Housing Division Manager, by telephone at (714) 667-2241 or by e-mail at ibrown(a,santa-ana.org. Sincerely, David Cavazos City Manager City of Santa Ana / Housing Authority of the City of Santa Ana Conditional Pre -Commitment Letter for $2,600,000 December 20, 2016 AMCAL 1440 Santa Ana Fund, L.P. AMCAL Multi -Housing, Inc. 2082 Michelson Drive, Suite 306 Irvine, CA 92612 Attention: Mario Turner SUBJECT: 69 Unit Multi -Family Housing Project 1440 East First Street, Santa Ana, California Dear Mr. Turner, AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") requested financial assistance in connection with the proposed development of a 69 unit affordable housing complex to be located at 1440 East First Street, Santa Ana, California ("Project"). The City has reviewed the Developer's request for assistance and at a City Council meeting on December 20, 2016 the City Council authorized and approved issuance of this conditional, pre -commitment letter evidencing the preliminary award of $2,600,000 of funds to the Project (the "City Assistance"), which City Assistance shall be funded exclusively from inclusionary housing in -lieu fee payments made pursuant to the City's Housing Opportunity Ordinance (Article XVIILI of Chapter 41 of the Santa Ana Municipal Code) by the developer (the "Market Rate Developer") of that certain mixed- use development to be located at 2001 East Dyer Road, Santa Ana, California (the "In- Lieu Fee"). The purpose of this letter is to provide a conditional, pre -commitment from the City of Santa Ana for a loan of $2,600,000.00 ("City Loan") from funds received by the City from the In -Lieu Fee. The City intends that this letter evidence the City's award of the City Assistance to the Developer for the Project subject to the conditions described below. The loan agreements for these funds require City Council approval prior to execution by the Developer and the City of Santa Ana. The amount of the proposed Loan has been determined based upon the City's review of the Developer's request for the receipt of the City Assistance and the development proforma and projected cash flows for the Project submitted by the Developer to the City as of March 18, 2016 ("Proforna"). The City Manager has authority to approve revised development proformas and projected cash flows for the Project; provided, however, that the Santa Ana Assistance is not materially increased or extended. On April 19, 2016, the City Council approved a conditional, pre -commitment loan of up to $8,795,000 funded exclusively from inclusionary housing in -lieu fee payments made pursuant to the City's Housing Opportunity Ordinance (Article XVIRI of Chapter 41 of the Santa Ana Municipal Code) by the market rate developer of that certain mixed-use development to be located at 2001 East Dyer Road, Santa Ana, California. The Developer and the City agree that this conditional, pre - commitment from the City for a loan of $2,600,000 releases the City of its original commitment of AMCAL 1440 Santa Ana Fund, L.P. December 20, 2016 Page 2 the balance of $6,195,000 from the conditional, pre -commitment loan approved by City Council on April 19, 2016. As such, the conditional, pre -commitment loan of up to $8,795,000 approved by City Council on April 19, 2016 is hereby reduced to a conditional, pre -commitment loan of $2,600,000, subject to the conditions below. The Loan, should it be issued, will have the following terms: $2,600,000.00 principal amount, or as much thereof as is disbursed for acquisition costs and hard and soft costs in constructing the Project; 3% simple interest per annum; Repayment from 50% of Residual Receipts (pro -rata with payments due in connection with other financing provided by the City) (after payment of operating expenses, debt service, any deferred developer fee, and partnership fees to be described in the Agreement) with the remaining 50% to be disbursed to the Developer; • Remaining principal and accrued interest due upon the 55th anniversary of the issuance of Certificate of Occupancy and/or final building permits or earlier upon sale, refinancing or default. Additionally, Santa Ana will receive 50% of the net proceeds received from any sale or refinancing of the Project, after payment of outstanding debt and payment in full of any deferred developer fee and establishment of any reserves and transaction costs; and • Cost savings from the Project, if any, will be applied first to pay down the Loan, subject to compliance with the TCAC'Regulations. The City's obligation to provide the Loan to the Project are subject to each of the following conditions: L Receipt by the City of the.In-Lieu Fee. On October 6, 2015 the City received a letter indicating a Market Rate Developer's preference that their hr -Lieu Fees be applied towards the Project. The Developer agrees and acknowledges that while a preference has been stated and the City has agreed to honor the preference, the City has not yet received he In -Lieu Fee. The City shall notify the Developer if and when it receives the In -Lieu Fee. Notwithstanding anything to the contrary set forth herein, the City shall have no obligation to fund the Loan unless the In -Lieu Fee has been received by the City. 2. Review and approval of the documents evidencing the Loan by the City Council. 3. Compliance with and completion of environmental review of the Project pursuant to the California Environmental Quality Act ("CEQA") and approval thereof. 4. 68 of the 69 "Housing Units" at the Project shall and will be restricted to "Affordable Rent" as defined by the TCAC Regulations for a period not less than 55 years pursuant to conditions, covenants and restrictions recorded against the Project 80B-18 AMCAL 1440 Santa Ana Fund, L.P. December 20, 2016 Page 3 in the Official Records, County of Orange, California. 34 of the 68 Housing Units at the Project shall and will be restricted to households earning 30% or less of the AMI unless the City and the Developer may reasonably determine that a lesser number of Housing Units at the Project should be restricted to household earning 30% or less of AMI is necessary to cause the Project to be competitive for tax credit financing and/or to be financially viable. One (1) Housing Unit will be rented to an on-site property manager; the manager's unit will not be rent -restricted. 5. The Loan Agreement shall provide that each of the following conditions shall be met prior to the disbursement of any portion of the Loan: a. All grading permits shall have been issued and the City shall have issued a letter stating that building permits are ready to issue, subject only to payment of fees and the completion of grading of the Project site. b. Developer shall have secured all necessary financing and fimding for the construction and operation of the Project. Such financing and funding shall be sufficient to pay all Project development costs, through lease -up, as set forth in a final budget consistent with the approved Proforma (or as otherwise approved by the City), C. The Developer shall have provided evidence to the City that the Developer has obtained insurance policies and certificates or endorsements acceptable to the City, as described in the Loan Agreement. d. The Developer shall have provided construction security in favor of the City, which may include a completion guarantee from AMCAL Multi- Housing, Inc; and/or a letter of credit and/or performance & payment bonds from the general contractor for the Project (or some combination of these), in an amount sufficient to ensure the Project will be completed and placed in service within the time set forth in the Project schedule approved by Santa Ana. C. Developer shall submit and obtain Executive Director of the Community Development Agency's approval of the constriction contract, Developer's limited partnership agreement for the limited partnership entity to be formed to own and operate the Project, and management, marketing and tenant selection plans for the Project. 6. The City's obligation to provide the Loan is and shall remain subject to all covenants, conditions, and restrictions set forth in the Loan Agreement, and in particular City's analysis of the available funding sources and development and operating costs of the Project and the overall economic feasibility of the Project. This conditional, pre -commitment letter for the project will expire two (2) years from issuance of the letter to the Developer. The Developer and the City agree in the Loan Agreement that the provision of any funds to the Project is and shall be conditioned on the City's determination to AMCAL 1440 Santa Ana Fund, L.P. December 20, 2016 Page 4 proceed with, modify or cancel the City Assistance based on the results of a subsequent CEQA environmental review and the outcome of a Subsidy Layering Review. If you have any questions or require additional information regarding this letter, please contact Judson Brown, Housing Division Manager, by telephone at (714) 667-2241 or by e-mail at ibrownnsanta-ana.om. Sincerely,