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HomeMy WebLinkAbout FULL PACKET_2017-02-21MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA FEBRUARY 3, 2017 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA 8:33 A.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor MICHELE MARTINEZ, Mayor Pro Tem* P. DAVID BENAVIDES VICENTE SARMIENTO JOSE SOLORIO SAL TINAJERO JUAN VILLEGAS COUNCILMEMBERS Absent: NONE STAFF Present: GERARDO MOUET, Acting City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS - None COUNCIL RECESSED to Room 147 for Closed Session discussion at 8:34 a.m. *TELECONFERENCE - Pursuant to Government Code Section 54953(b), Councilmember Martinez participated in a portion of the meeting via teleconference from Marriott St. Louis Grand, 800 Washington Avenue, St. Louis, MO. The Agenda for said meeting was posted at said location as required by the Brown Act. 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: CITY COUNCIL MINUTES 1 FEBRUARY 3, 2017 10A-1 CONFERENCE WITH LEGAL COUNSEL — Anticipated significant exposure to litigation pursuant to paragraph (2) or (3) of subdivision (d) of Section 54956.9 of the Government Code: One Item CLOSED SESSION REPORT - Nothing to report. ADJOURNED — 9:26 A.M. Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES FEBRUARY 3, 2017 10A-2 MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA FEBRUARY 7, 2017 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA 5:12 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor (5:41 p.m.) MICHELE MARTINEZ, Mayor Pro Tern (5:14 p.m.) P. DAVID BENAVIDES VICENTE SARMIENTO JOSE SOLORIO SAL TINAJERO JUAN VILLEGAS COUNCILMEMBERS Absent: NONE STAFF Present: GERARDO MOUET, Acting City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council Quorum was established thru presence of Councilmembers Benavides, Sarmiento, Solorio and Villegas. MOTION: Elect Councilmember Benavides as Chair (pursuant to SAMC 2- 101 due to unavailability of Mayor and Mayor Pro Tem). MOTION: Tinajero VOTE: AYES NOES: ABSTAIN: ABSENT: SECOND: Sarmiento Benavides, Sarmiento, Solorio, Tinajero and Villegas (5) None (0) None (0) Martinez, Pulido (2) CITY COUNCIL MINUTES 1 FEBRUARY 7, 2017 1OB-1 PUBLIC COMMENTS - None COUNCIL RECESSED to Room 147 for Closed Session discussion at 5:12 p.m. CLOSED SESSION ITEMS The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matters will prejudice the position of the City in existing and anticipated litigation: 1. CONFERENCE WITH LEGAL COUNSEL --EXISTING LITIGATION pursuant to Paragraph (1) of subdivision (d) of Section 54956.9 of the Government Code: • Richard Marckstadt v. City of Santa Ana; Workers' Compensation Appeals Board Case Nos, ADJ8904656; ADJ8904659 • Hank Couisine v. City of Santa Ana; Workers' Compensation Appeals Board Case No. ADJ8926744 Erisbed Ramirez v. City of Santa Ana, Colin Reedy, Orange County Superior Court Case No. 30-2016-00835308 2. CONFERENCE WITH LEGAL COUNSEL -- ANTICIPATED LITIGATION - Significant exposure to litigation pursuant to paragraph (2) or (3) of subdivision (d) of Section 54956.9 of the Government Code: One Item 3. PUBLIC EMPLOYEE PERFORMANCE EVALUATION pursuant to Section 54957(b)(1) of the Government Code: Title: City Attorney and Clerk of the Council CLOSED SESSION REPORT - See Item 19A for any reportable actions. ADJOURNED THE CLOSED SESSION MEETING AT 6:07 P.M. AND CONVENED TO THE REGULAR OPEN MEETING. CITY COUNCIL MINUTES 2 FEBRUARY 7, 2017 10 B-2 REGULAR OPEN MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:11 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor MICHELE MARTINEZ, Mayor Pro Tem P. DAVID BENAVIDES VICENTE SARMIENTO JOSE SOLORIO SAL TINAJERO JUAN VILLEGAS PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS COUNCILMEMBERS Absent: NONE STAFF Present: GERARDO MOUET, Acting City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council LAYLA HERRERA, EDGAR MENDEZ, APRIL NOGUERON, AND TIFFANY RUIZ - SCHOLARSHIP PREP CHARTER SCHOOL RUBEN ESPONDA, POLICE CHAPLAIN CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER SARMIENTO to Healthy Smiles for Kids of Orange County for the outstanding services they provide to families in Santa Ana. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER SARMIENTO to the Student Ambassador Competition winners of the 30-Day Voter Challenge: Host Event/ Drive/ Rally Category: o Samueli Academy ■ Alyssa Lucio • Crystal Hernandez • Kassie Mulan CITY COUNCIL MINUTES 3 FEBRUARY 7, 2017 10 B-3 • Social Media Category: o Godinez Fundamental High School • Betzaira Ruiz • Rafael Ramirez ■ Claudia Navarrete • Yesireth Solis • Erick Orozco • Video Category: o Godinez Fundamental High School • Sofia Sanchez • Vivian Juarez • Lilian Rangel • Jose Silva CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER SOLORIO to the leaders of the Santa Anita Neighborhood Association for their outstanding community service: Martha Calderon, Rodolfo Calderon, Felipe Guerrero and Orlando Quintana. PROCLAMATION presented by COUNCILMEMBER SOLORIO to HPO Embroidery in recognition of their 15-Year Anniversary. PROCLAMATION presented by COUNCILMEMBER TINAJERO in recognition of National School Counselor Week February 6-10. 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 31C, with the following modifications: • Mayor Pro Tern Martinez pulled Agenda items 19F, 25D, 25F and 31A for separate action; • Councilmember Solorlo pulled Agenda Item 25F and 25G for separate action; and • Councilmember Sarmlento pulled Agenda Item 25D for separate action. CITY COUNCIL MINUTES 4 FEBRUARY 7, 2017 10 B-4 MOTION: Martinez SECOND: Tinajero VOTE: AYES: Benavides, Martinez, Pulido, Sarmiento, Solorio, Tinajero, Villegas (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) tems removed for separate action or modified are highlighted. Separate actions shod ADMINISTRATIVE MATTERS MINUTES 10A. MINUTES FROM THE REGULAR MEETING OF JANUARY 17, 2017 (STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Approve Minutes. 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 Parks, Recreation, Education & Youth Committee (Cancellation) 1/23/2016 Public Safety and Neighborhood Improvement Committee (Cancellation) 1/24/2016 13B. NOMINATED BY COUNCILMEMBER SOLORIO AS THE WARD 3 REPRESENTATIVE TO THE BOARD ENVIRONMENTAL AND TRANSPORTATION ADVISORY COMMITTEE FOR A FULL -TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Appoint Bruce T. Bauer to the Environmental and Transportation Advisory Committee (Ward 3 resident; replacing D. Oregel). 13C. NOMINATED BY COUNCILMEMBER TINAJERO AS THE WARD 6 REPRESENTATIVE TO THE COMMUNITY REDEVELOPMENT AND CITY COUNCIL MINUTES 5 FEBRUARY 7, 2017 1 OB-5 HOUSING COMMISSION FOR A PARTIAL -TERM EXPIRING DECEMBER 11, 2018 (STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Appoint Gary Woods to the Community Redevelopment and Housing Commission (Ward 6 resident; replacing M. Schauer). 13D. NOMINATED BY COUNCILMEMBER VILLEGAS AS THE WARD 5 REPRESENTATIVE TO THE HISTORIC RESOURCES COMMISSION FOR A FULL -TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Appoint Tim Rush to the Historic Resources Commission (Ward 2 resident; replacing E. Murashie). 13E. NOMINATED BY COUNCILMEMBER VILLEGAS AS THE WARD 5 REPRESENTATIVE TO THE COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION FOR A FULL -TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Appoint Angie R. Cano to the Community Redevelopment and Housing Commission (Ward 6 resident; replacing T. Leon). MISCELLANEOUS ADMINISTRATION 19A. CONFIRMATION OF CLOSED SESSION ACTION(S) — City Attorney's Office MOTION: Approve as follow: 1. CONFERENCE WITH LEGAL COUNSEL --EXISTING LITIGATION pursuant to Paragraph (1) of subdivision (d) of Section 54956.9 of the Government Code: • Richard Marckstadt v. City of Santa Ana; Workers' Compensation Appeals Board Case Nos. ADJ8904656; ADJ8904659; Settlement in the amount of $62,929.64 approved by 6-0 vote (Pulido absent). • Hank Couisine v. City of Santa Ana; Workers' Compensation Appeals Board Case No. ADJ8926744; Settlement in the amount of $135,178.21 approved by vote of 5-1 (Martinez dissented). • AGMT NO. 2017-028 - Erisbed Ramirez v. City of Santa Ana, Colin Reedy, Orange County Superior Court Case No. 30-2016-00835308; settlement in the amount of $85,000 6-0 vote (Pulido absent) 2. CONFERENCE WITH LEGAL COUNSEL -- ANTICIPATED LITIGATION - Significant exposure to litigation pursuant to paragraph (2) or (3) of CITY COUNCIL MINUTES 6 FEBRUARY 7, 2017 10 B-6 subdivision (d) of Section 54956.9 of the Government Code: One Item — Motion to File an Appeal of the Personnel Board, by Tinajero, seconded by Martinez and approved by 4-3 vote (Pulido, Solorio and Villegas dissented). 19B. EXCUSED ABSENCES — None 19C. QUARTERLY REPORT OF INVESTMENTS AS OF DECEMBER 31, 2016 (STRATEGIC PLAN NO. 4, 1 D) - Finance and Management Services MOTION: Receive and file. 19D. QUARTERLY REPORT FOR HOUSING DIVISION PROJECTS AND ACTIVITIES OCTOBER 2016 — DECEMBER 2016 {STRATEGIC PLAN NO. 5, 3) - Community Development Agency Community Redevelopment and Housing Commission approved recommended action on January 25, 2017 by a vote of 6-0. MOTION: Receive and file. 19E. PUBLIC WORKS AGENCY STATUS OF PROJECTS - MONTHLY CAPITAL IMPROVEMENT PROGRAM EXECUTIVE REPORT FOR JANUARY 2017 {STRATEGIC PLAN NO. 5, 1) - Public Works Agency 19F. MOTION: Receive and file. Matter continued from the January 17, 2016 City Council meeting by a vote of 6- 0 (Sarmiento absent). MOTION: Receive and file. MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Benavides, Martinez, Pulido, Sarmiento, Solorio, Tinajero, Villegas (7) NOES: None (0) CITY COUNCIL MINUTES 7 FEBRUARY 7, 2017 10 B-7 ABSTAIN: None (0) ABSENT: None (0) 19G. CONTINUE ITEM: COMPREHENSIVE ANNUAL FINANCIAL REPORT FOR THE FISCAL YEAR -ENDED JUNE 30, 2016 {STRATEGIC PLAN NO. 4, 1) - Finance and Management Services Matter continued from the December 20, 2016 City Council meeting by a vote of 7-0, Matter continued from the January 17, 2017 City Council meeting by a vote of 6-0 (Sarmiento absent). MOTION: Continue matter to the February 21, 2017 City Council meeting at the request of staff. BUDGETARY MATTERS SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES 22A. SPEC. NO. 16-139 - CONTRACT AWARD FOR TWO COMPRESSED NATURAL GAS (CNG) HEAVY DUTY HAULING TRUCKS {STRATEGIC PLAN NO. 6, 2) (Public Works Agency) - Finance and Management Services MOTION: Authorize a one-time purchase and payment of purchase order to Los Angeles Truck Centers, LLC, in the amount of $360,050 plus a five percent contingency of $18,000, for a total amount not to exceed $378,050, subject to nonsubstantive changes approved by the City Manager and City Attorney. 2213. SPEC. NO. 16-132 - CONTRACT AWARD FOR TWO POLARIS GEM ELECTRIC UTILITY VEHICLES {STRATEGIC PLAN NO. 6, 2) - Finance and Management Services MOTION: Authorize a one-time purchase and payment of purchase order to Electric Car Sales and Service in an amount not to exceed $39,155 plus a contingency of $1,175 for a total amount of $40,330, subject to non - substantive changes approved by the City Manager and City Attorney. PROJECTS/CHANGE ORDERS CITY COUNCIL MINUTES 8 FEBRUARY 7, 2017 ' woo 23A. AWARD CONTRACT FOR THE BOMO KORAL PARK SIDEWALK RENOVATIONS (PROJECT NO. 16-2671) {STRATEGIC PLAN NO. 6, 1C) - Public Works Agency; and Parks, Recreation and Community Services Agency MOTION: 1. Award a contract and authorize the City Manager and the Clerk of the Council to execute a construction contract to Golden State Constructors, the lowest responsible bidder, in accordance with the base bid plus Additive Alternates 1, 2, 3, and 4, in the total amount of $71,099, for the term beginning upon execution of the contract and ending upon project completion, for construction of the Bomo Koral Sidewalk Renovations 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 project delivery cost of $133,900, which includes the contract base, Additive Alternates 1, 2, 3, and 4, administration, inspection, testing, and a $52,136 contingency, to capitalize on competitive unit prices and implement additional improvements. AGREEMENTS 25A. CONTINUE ITEM: PROVIDE COMMUNITY ORIENTED POLICING SURVEY {STRATEGIC PLAN NO. 1, 1A} - Police Department MOTION: Continue matter to the February 21, 2017 City Council meeting at the request of staff. 25B. AGMT NO. 2017-014 - ANNUAL SOFTWARE MAINTENANCE AND SUPPORT FOR THE POLICE DEPARTMENT'S AUTOMATIC VEHICLE LOCATION SYSTEM (STRATEGIC PLAN NO. 1, 5A) - Police Department MOTION: Authorize the City Manager and Clerk of the Council to execute a one-year amendment with GeoSpatial Technologies, Inc., for the period of December 16, 2016 through December 15, 2017, in an amount of $20,898 plus a $5,000 contingency for a total not to exceed amount of $25,898, subject to non -substantive changes approved by the City Manager and City Attorney. 25C. APPROVED LIST OF COMMUNITY HOUSING DEVELOPMENT ORGANIZATIONS FOR THE DEVELOPMENT OF AFFORDABLE HOUSING — GRANT FUNDED {STRATEGIC PLAN NO 5, 3) - Community Development Agency CITY COUNCIL MINUTES 9 FEBRUARY 7, 2017 10 B-9 25E At its regular meeting on December 28, 2016, by a vote of 7-0 the Community Redevelopment and Housing Commission recommended that the City Council and Housing Authority approve the recommended actions. MOTION: 1. Certify Jamboree Housing Corporation, American Family Housing and Mercy House as Community Housing Development Organizations and place these entities on the Approved List of Community Housing Development Organizations as prequalified to apply for a set -aside of up to $504,550 in HOME Investment Partnerships Program funds for up to a three-year term from March 1, 2017 to February 29, 2020. 2. Authorize the City Manager and the Clerk of the Council to enter into agreement(s) with the Approved List of Community Housing Development Organizations after a project is or projects are submitted by the prequalified entities and approved by staff, subject to non - substantive changes approved by the City Manager and City Attorney. • AGMT NO. 2017-015 — Jamboree Housing Corporation • AGMT NO. 2017-016 —American Family Housing • AGMT NO. 2017-017 — Mercy House Councilmember Sarmiento, motioned to continue matter for 2 weeks, seconded by Councilmember Tinajero. Motion withdrawn to allow for deliberation of item following Agenda Item 80A since they are associated. AS -NEEDED INFORMATION TECHNOLOGY PROFESSIONAL SERVICES (STRATEGIC PLAN NO. 7, 21D} - Information Technology Department MOTION: Authorize the City Manager and Clerk of the Council to execute seven information technology professional services agreements with the firms listed below, each for a one (1) year term expiring February 6, 2018 with the potential for three one-year renewal terms, exercisable by the City Manager and the City Attorney, for a total aggregate amount for all seven consultants, not -to -exceed $3,000,000 annually and $12,000,000 over the life of the agreements if all extensions are utilized, subject to non - substantive changes approved by the City Manager and City Attorney: 1. AGMT NO. 2017-018 — With The Comdyn Group, Inc. 2. AGMT NO. 2017-019 - With Bunnell Enterprises (dba Total Network Solutions) 3. AGMT NO. 2017-020 - With The Ryte Professionals, Inc. CITY COUNCIL MINUTES 10 FEBRUARY 7, 2017 1OB-10 4. AGMT NO. 2017-021 - With Scienta Consulting Group, Inc. 5. AGMT NO. 2017-022 - With Sierra Cybernetics, Inc. 6. AGMT NO. 2017-023 - With Softmaster, Inc. 7. AGMT NO. 2017-024 - With Stelarum Studios, Inc. 25F. AGMT NO. 2017-025 - COOPERATIVE AGREEMENT FOR THE USE OF RIGHT-OF-WAY FOR THE OC STREETCAR PROJECT- (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 3, 2C, 46; 6, 1 G} - Public Works Agency Mayor Pro Tem Martinez, requested coordination with Orange County Transportation Authority or any other agency that impacts infrastructure projects. MOTION: Authorize the City Manager and Clerk of the Council to execute Cooperative Agreement No. C-6-1433 with the Orange County Transportation Authority for the term beginning on the effective date of this agreement for a period of 50 years, subject to nonsubstantive changes approved by the City Manager and City Attorney. MOTION: Martinez VOTE: AYES: NOES: ABSTAIN: ABSENT: 25G. SECOND: Benavides Benavides, Martinez, Pulido, Sarmiento, Solorio, Tinajero, Villegas (7) None (0) None (0) None (0) MOTION: Authorize the City Manager and the Clerk of the Council to execute a three-year agreement with Data Ticket Inc., for the period of February 7, 2017 through February 6, 2020, with the option to extend the agreement for two additional one-year extensions, in the amount of $805,431, plus an additional 10% contingency of $80,544, in the amount of $885,975 subject to non -substantive changes approved by the City Manager and City Attorney. MOTION: Martinez VOTE: AYES SECOND: Solorio Benavides, Martinez, Pulido, Sarmiento, Solorio, Tinajero, Villegas (7) CITY COUNCIL MINUTES 11 FEBRUARY 7, 2017 1OB-11 NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) MISCELLANEOUS - BUDGET 29A. DONATION AGREEMENT TO SUPPORT A BASEBALL GAME {STRATEGIC PLAN NO. 5, 4) - Councilmember Tinajero MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Jaguar Diamond Booster Club for a one-time donation amount of $2,000, subject to non -substantive changes approved by the City Manager and the City Attorney. 29B. DONATION AGREEMENT TO SUPPORT A LEADERSHIP CONFERENCE (STRATEGIC PLAN NO. 5, 4) - Mayor Pro Tern Martinez MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Mexican -American Women's National Association of Orange County for a one-time donation amount of $1,000, subject to non - substantive changes approved by the City Manager and the City Attorney LAND USE MATTERS CONDITIONAL USE PERMIT/VARIANCES Planning Commission approved recommended action on January 9, 2017, by a vote of 7-0. MOTION: Receive and file the staff report approving Conditional Use Permit No. 2016-37 as conditioned. MOTION: Tinajero SECOND: Benavides VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Tinajero, Villegas (6) CITY COUNCIL MINUTES 12 FEBRUARY 7, 2017 1OB-12 NOES: Martinez (1) ABSTAIN: None (0) ABSENT: None (0) 31 B. CONDITIONAL USE PERMIT NO. 2016-48 AND VARIANCE NO. 2016-08 TO ALLOW A MCDONALD'S RESTAURANT WITH DRIVE -THROUGH WINDOW SERVICE AT 1501 NORTH BRISTOL STREET - JESSICA STEINER, APPLICANT {STRATEGIC PLAN NO. 3, 2) - Planning and Building Agency Planning Commission approved recommended action on January 9, 2017, by a vote of 7-0. MOTION., Receive and file the staff report approving Conditional Use Permit No. 2016-48 as conditioned and Variance No. 2016-08 as conditioned. 31C. VARIANCE NO. 2016-09 TO ALLOW AN EXISTING FREESTANDING SIGN TO REMAIN AT A MOBIL SERVICE STATION AT 1351 EAST DYER ROAD - ULISES ARAUJO, APPLICANT {STRATEGIC PLAN NO. 3, 2) - Planning and Building Agency Planning Commission approved recommended action on January 9, 2017, by a vote of 7-0. MOTION: Receive and file the staff report approving Variance No. 2016-09 as conditioned. **END OF CONSENT CALENDAR** OATH OF OFFICE ADMINISTER TO GARY WOODS AND ANGIE R. CANO APPOINTED TO THE COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION BUSINESS CALENDAR ITEMS AGENDA ITEM CONSIDERED OUT OF ORDER - REPORTS 65C. COMMUNITY ENHANCEMENT PROGRAM GRANT AGREEMENTS AND APPROPRIATION ADJUSTMENT FOR FISCAL YEAR 2016-2017 CITY COUNCIL MINUTES 13 FEBRUARY 7, 2017 1OB-13 {STRATEGIC PLAN NOS. 2,2A; 2,213; 5,4B; 5,5C; 5,6C } - City Manager's Office and Community Development Agency Consideration of matter continued from the December 20, 2016 City Council meeting to the January 17, 2017 City Council meeting by a vote of 6-0 (Benavides abstained). Consideration of matter continued from the January 17, 2017 City Council meeting to the February 7, 2017 City Council meeting by a vote of 5-0 (Benavides abstained; Sarmiento absent). The following spoke on the matter: • Alicia Rodriguez, representing Delhi Center, urged support for their application. • Anthony Hernandez, summer camp recipient that benefited from program at Delhi Center. • Mary Lara, TKO Boxing advocate, expressed support for their submittal. • John Raya, TKO Boxing, noted that program established 23 years ago to assist the youth in our community; 50% of attendees are women. • Jose Orozco, spoke in support of TKO's submission. • Elisabeth LeGuin, professor at UCLA and board member of Centro Cultural de Mexico, requested support of option 1 B that will support 9 programs. • John Straw, spoke in support of Centro Cultural, was board member of OCEA, grant will enable their program to impact other schools. • Luis Sarmiento, opined that grants are an important investment in our community; consider option 1 B to fund more organizations; also, does not support proposed mobile vending ordinance. • Marcos Gutierrez, spoke of positive personal experience at TKO. • Lori Ohls, commented that social programs in need throughout our community. • Eleazor Diaz, parent at Kidworks supports option 1 B. • Karina Torres, supports Kidworks, and their efforts to help youth in our community; opposed to funding jails, need better options and social programs. • Maria Contreras, spoke in support of Kidworks. • Dr. Erlinda Martinez, Vice Chair of Kidworks board and former Santa Ana College President, urged City Council support to fund grant applications. • Karen Gallardo, representing youth members at Kidworks; urged support. • Teri Saydak, Centro Cultural de Mexico representative, stated that grants will develop pilot music program at various schools. • Marcos Rodriguez, Kidworks supporter, encourage youth involved. • Irma Mateo, Kidworks participant, opined that grants will allow organizations to benefit the whole community. • Yosely Ocampo, Kidworks member, has participated for 10 years — has helped with confidence and assist other students. • Evelyn Torres, Kidworks student, encouraged investments in our youth. • Jose Arguello, Kidworks participant, need to invest in youth centers to keep children safe and off the streets. CITY COUNCIL MINUTES 14 FEBRUARY 7, 2017 1OB-14 • Ryan Smolar, proposed to run workshops for neighborhood development, supports option 1 B to share funds with more organizations that will better the community. • Paul Nagel, supports proposal. • Leon Raya, expressed support for item and urged the City Council to approve. Council discussion ensued. Mayor Pro Tern Martinez, concerned with process, funding source and accounts established to allow former City Manager to have slush funds. Francisco Gutierrez, Executive Director of Finance and Management Services, explained fund balance process. Councilmember Solorio, asked if they are multi -year commitments, funds that had been accruing over years; process not transparent; asked about selection criteria. Acting City Manager Mouet, indicated that they are one-time funds that resulted in contract under -costs. Senior Management Assistant Jorge Garcia, noted that the process was similar to CDBG, but without minimums as set in federal regulations; followed procurement process; applications mailed to existing CDBG participants and non-profit organizations; applications reviewed and rated by panel that scored applications. Councilmember Solorio, concern about current financial situation; large number of vacant positions that allow for artificial surplus; proposed merging process with that of CBDG. Councilmember Villegas, not supportive of item until financial report provided on City's budget health. Councilmember Tinajero, commented that 10th Amendment will protect the City against any funding raids by the Federal government; proposed Senate Bill 54 will designate California a Sanctuary State; current report ranked City as fiscally stable; need to consider pension and health care costs when increasing positions; City needs to support youth programs; also, proposed that performance pay be offered to lower police brutality cases; City spending in excess of $6 million in the past several years to settle cases. Councilmember Sarmiento, opined that all worthy recipients; Mayor Pro Tern Martinez comments are well received, but supports programs that will enhance social services; public safety is keeping kids safe; important to prioritize and invest in our community. CITY COUNCIL MINUTES 15 FEBRUARY 7, 2017 1OB-15 Mayor Pro Tern Martinez, noted that she has been focused on City's finances since being elected; has not been supported by Police Officers Association in the past, but has always been consistent in her position; willing to make 3-5 year commitment to fund such programs after the City reviews its fiscal health. Councilmember Solorio, reflected on process; supports sustainable programs; CDBG has robust program that is transparent; also, noted that decorum has decreased at Council meetings - need civility. Councilmember Tinajero, encouraged 15t Amendment rights; asked the Police Offices Association to provide incentives to decrease excessive force cases. Mayor Pulido, supports many organizations including TKO Boxing, would like process vented by Council and be more inclusive; support multi -year commitments; proposed augmenting CDBG funding. Councilmember Villegas, reiterated support for family and youth programs. Councilmember Sarmiento, noted that all Councilmembers support community and social programs; suggested amended motion to establish Ad Hoc Council Committee to review process. Mayor Pro Tern Martinez, noted that fiscal policy indicates that once reserve funds met then excess funds would be reviewed by the City Council and one- time funds would not be spent on salary; concerned with return on investment on grant funds that are only one-time funds. Councilmember Solorio, concerned with mid -year budgets that require 5 votes in comparison with budget approval; supports augmenting CDBG funds; supports robust summer youth internship program. SUBSTITUTE MOTION: Table matter and return proposal with more transparent process. MOTION: Pulido VOTE: AYES: NOES: ABSTAIN: ABSENT: *Motion failed. SECOND: Martinez Martinez, Pulido, Villegas (3) Sarmiento, Solorio, Tinajero (3) Benavides (1) None (0) AMENDED ORIGINAL MOTION: Direct council committee or Ad Hoc committee to review proposal and make recommendations accordingly. CITY COUNCIL MINUTES 16 FEBRUARY 7, 2017 1OB-16 MOTION: Sarmiento SECOND: Tinajero VOTE: AYES: Sarmiento, Tinajero (2) NOES: Martinez, Pulido, Solorio, Villegas (4) ABSTAIN: Benavides(1) ABSENT: None (0) *Motion failed and matter tabled indefinitely. RESOLUTIONS 55A. APPROPRIATION ADJUSTMENT, RESOLUTION AND AGREEMENT ACCEPTING FISCAL YEAR 2016 EMERGENCY MANAGEMENT PERFORMANCE GRANT (EMPG) (STRATEGIC PLAN NO. 1, 2E, 2F, 6C) - Police Department Mayor Pro Tern Martinez, provided SCAG report on emergency preparedness for staff review; need rediness program and appropriate funding. MOTION: 1. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2017-083 - Recognizing $53,246 in Emergency Management Performance Grant funds in the Law Enforcement Grants revenue account, and appropriating same to the Emergency Management Performance Grant expenditure account. 2. Adopt a resolution. RESOLUTION NO. 2017-004 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER AND THE CHIEF OR POLICE OF HIS DESIGNEE(S) TO OBTAIN 2016 EMERGENCY MANAGEMENT PERFORMANCE GRANT FUNDS THROUGH THE COUNTY OF ORANGE 3. AGMT NO. 2017-027 - Authorize the City Manager and the Clerk of the Council to execute a one-year agreement with the County of Orange, for the period of July 1, 2016 through June 30, 2017, for the Emergency Management Performance Grant to provide assistance with state and local emergency preparedness, in an amount not to exceed $53,246, subject to non -substantive changes approved by the City Manager and City Attorney. MOTION: Martinez SECOND: Pulido CITY COUNCIL MINUTES 17 FEBRUARY 7, 2017 1OB-17 VOTE: AYES: Martinez, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Tinajero (2) 55B. RESOLUTION AUTHORIZING EXECUTION OF PROGRAM SUPPLEMENT AGREEMENTS REQUIRED BY MASTER AGREEMENT NO, 12-5063F15 TO SECURE FEDERAL -AID GRANT FUNDS {STRATEGIC PLAN NO. 6, 1G) — Public Works Agency MOTION: Adopt a resolution. RESOLUTION NO. 2017-005 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE EXECUTIVE DIRECTOR OF THE PUBLIC WORKS AGENCY TO EXECUTE ALL PROGRAM SUPPLEMENT AGREEMENTS REQUIRED BY REVISED MASTER AGREEMENT NO. 12-5063F15 WITH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR FEDERAL -AID PROJECTS MOTION: Sarmiento SECOND: Pulido VOTE: AYES: Martinez, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Tinajero (2) REPORTS 65A. ANNUAL REVIEW AND APPOINTMENT OF REGIONAL BOARD REPRESENTATIVES {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office Matter continued from the December 20, 2016 City Council meeting to the January 17, 2017 City Council meeting by a vote of 7-0. Matter continued from the January 17, 2016 City Council meeting to the February 7, 2017 City Council meeting by a vote of 6-0 (Sarmiento absent). MOTION: CITY COUNCIL MINUTES 18 FEBRUARY 7, 2017 1OB-18 1. Appointed the following representaives and alternates to various regional board as follow: Newport Bay Watershed Fred Mousavipour, Representative Executive Committee Executive Director of Public Works Newport Bay Watershed William Galvez, Alternate Executive Committee Assistant Director of Public Works OC Sanitation District * Sal Tinajero Representative OC Vector Control District Cecilia Aguinaga Representative Orange County Fire Juan Villages Representative Authority OFCA) * Transportation Corridor Sal Tinajero Representative Agencies (TCA) * Transportation Corridor Miguel Pulido Alternate Agencies (TCA) * 2. Adopt a resolution designating and appointing a representative to the Orange County Fire Authority's Board of Directors; and, RESOLUTION NO. 2017-006 - 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 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. MOTION: Sarmiento SECOND: Martinez VOTE: AYES: Benavides, Martinez, Pulido, Sarmiento, Solorio*, Tinajero, Villegas (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) *Councilmember Solorio abstained on appointment of Transportation Corridor Agency representatives out of an abundance of caution due to his business relations. CITY COUNCIL MINUTES 19 FEBRUARY 7, 2017 1OB-19 65B. ANNUAL REVIEW OF COUNCIL COMMITTEES AND APPOINTEES {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office Matter continued from the January 17, 2016 City Council meeting to the February 7, 2017 City Council meeting by a vote of 6-0 (Sarmiento absent). Councilmember Solorio, suggested consolidating some council committees, as follow: Standing Committees: • Planning, Budget, and Economic Development • Public Safety, Code Enforcement and Neighborhood Empowerment • Parks and Recreation, Education and Youth (Joint Use with Santa Ana Unified School District) Ad Hoc Committees: • Housing, Development and Infrastructure • Legislative Affairs, Ethics and Transparency He suggested that some may be established as Ad Hoc committees until they are formalized. Expressed an interest in serving on the Public Safety and the Legislative Affairs Committee. Mayor Pro Tern Martinez, proposed the following standing committees: • Transportation, Infrastructure and Technology • Legislative, Ethics and Transparency • Public Safety • Community Services (instead of PREY and include Joint Use with SAUSD • Economic Development She expressed an interest in serving on the Transportation and the Legislative Committees. Mayor Pulido, requested staffing allocation and cost associated with establishing said committees. Councilmember Sarmiento, recommended that both proposals be brought back for Council consideration. Councilmember Solorio noted that some matters are urgent, thus may establish Ad Hoc committees as needed. MOTION: Continue discussion of matter to the February 21, 2017 City Council meeting. MOTION: Sarmiento SECOND: Martinez VOTE: AYES: Benavides, Martinez, Pulido, Sarmiento, Solorio, Tinajero, Villegas (7) NOES: None (0) ABSTAIN: None (0) CITY COUNCIL MINUTES 20 FEBRUARY 7, 2017 1 OB-20 ABSENT: None (0) 65C. AGENDA ITEM CONSIDERED OUT OF ORDER *Mayor Pulido declared a potential conflict of interest on Agenda Item 75A, abstained and left the dais for the duration of deliberation on said item. PUBLIC HEARING 75A. PUBLIC HEARING - ORDINANCE TO REGULATE MOBILE FOOD VENDING VEHICLES {STRATEGIC PLAN NO 5, 4) - Planning and Building Agency; and City Attorney's Office Matter continued from the December 20, 2016 City Council at the request of staff. Legal Notice published in the Orange County Reporter, Orange County Register, and La Opinion on January 27, 2017 and notices mailed to mobile vendors on February 2, 2017. Mayor Pro Tem Martinez opened the Hearing. The following spoke on the matter: • Irma Macias, supports proposed ordinance; need to regulate vending vehicles. • Alex Soriano, supports mobile vending businesses that have provided small business opportunities. • Ricardo Cabanas, business owner, interested in learning regulations proposed. • Hugo Munoz, supports businesses and industry. • Jose Guzman, spoke in support of mobile vendors; need to legalize mobile vending businesses like the City of Los Angeles. • Evangeline Gawronski, spoke in support of proposed ordinance; need to inspect vehicles and regulate. • Chris Schmit, spoke in favor of proposal; will ensure that they do not operate in neighborhoods illegally; enforce the 100 feet requirement to protect pedestrians. There were no other speakers and the Hearing closed. Council discussion ensued. Mayor Pro Tern Martinez, concerned with public safety element although understand that it is vital part of our community; need to regulate and permit. Councilmember Sarmiento, proposed a 2 week continuance. CITY COUNCIL MINUTES 21 FEBRUARY 7, 2017 1 OB-21 Councilmember Benavides, suggested a 30 day continuance. Councilmember Solorio, asked that presentation be shared with the public. City Attorney Carvalho, provided background on the issue — nuisance, trash, public urination, illegal vending and other complaint and non -enforcement; Courts had ordered that certain sections not enforced; proposal is legal findings and not punitive but protect the safety of our community. Councilmember Sarmiento, need to reach out to Judge Carter and plaintiffs in previous case to avoid litigation. Alvaro Nunez, Code Enforcement Manager presented staff report: Legislative parameters ■ Adopt the recommended revisions to the City's Municipal Code related to Mobile Food Vending Vehicles. • Repeal existing ordinance • Adopt New Ordinance ■ City Council Direction • Respond to resident concerns • Balance stakeholders Input with State and County Pre -requisites • Upgrade regulations to current case -law and sustain legal challenge • Address Public safety issues • Compliance with Orange County Health standards • Address joint use of private & public property • Trash and litter accumulation • Unsanitary Conditions Legislative History ■ 1994 — City adopted ordinance to regulate mobile vending ■ 1997 — Court injunction to cease enforcement of the regulations due to non- conformance with State Regulations ■ Legislative History ■ 2004/05 — City adopted new regulations ■ 2006 — Ordinance challenged in both State and Federal Court • State Superior Court issued injunction to cease enforcement of: • Hours of operation ■ Requirement to move every 90 minutes • Revocation of City permits ■ Federal District Court issued a Temporary Restraining Order prohibiting enforcement of all aspects of the ordinance. Role of mobile vending in the community • Provides close access to food and other convenience items in dense neighborhoods • Easily accessible to those without transportation • Sometimes extend credit for purchases CITY COUNCIL MINUTES 22 FEBRUARY 7, 2017 1 OB-22 Can act as "eyes on the street" due to their continual presence Mostly Community Businesses Common Neighborhood Concerns 1. Concentration of vending vehicles on neighborhood streets 2. Mid -block pedestrian crossings to reach trucks 3. Overnight parking in residential zones a. Vehicles not returning to commissaries b. Vendors taking up limited parking spaces c. Late night operation 4. Parking too close to intersections and driveways — blocks visibility at crosswalks and sidewalks 5. Public urination 6. Failure to comply with Orange County Health standards 7. Tables and chairs blocking sidewalks or set up on the road 8. Damage to parkways; Trash and litter accumulation Guiding Principles in Proposed Ordinance ■ Clarify regulations/update to reflect current practice and eliminate outdated provisions • In Conformance with State & Case -law ■ Public Safety Findings ■ Survey surrounding cities regarding regulations ■ Simplify permitting and regulation requirements ■ Allow multiple mobile vendors to vend on private property at special events Public Agencies Coordination ■ Planning & Building Agency ■ City Attorney's Office ■ Santa Ana Police Department ■ Public Works Agency ■ County of Orange Health Care Agency/Environmental Health ■ Community Development Agency/Downtown Office California Vehicle Code - CVC -22455 ■ Sets forth regulations for legal vending ■ Allows vending in residential zones ■ Requires high threshold -- Public Safety Findings to • Prohibit mobile vending in residential zone • Amend requirements regulating time and manner of vending • Provide distance requirements between mobile vehicles and brick and mortar establishments. * *Case -Law prohibits this type of ordinance as restraint of trade and unconstitutional. Proposed ordinance in adherence to State Law ■ Allows for vending on private property through Land Use Certificate and/or special event permit CITY COUNCIL MINUTES 23 FEBRUARY 7, 2017 1 OB-23 ■ Conforms with the California Retail Food Code and County of Orange Health Care Agency/Environmental Health • Requires a restroom facility when vending in excess of one hour at a location • Prohibits overnight storage outside of an approved commissary. ■ Prohibits vending within one hundred (100) feet of a crosswalk. ■ Prohibits vending in any manner which blocks or impedes vehicular access to any driveway or restricts movement of other vehicles upon any public or private street. ■ Prohibits vending on main arterials (35 mph) ■ Prohibits items in the public right of way ■ Prohibits vending within five hundred (500) feet from a school, park, community center or public playground facility. ■ Prohibits additional lighting/signs or amplified sound other than that required by the California Vehicle Code. ■ Requires vending vehicles to be equipped with refuse containers within a fifty (50)-foot radius of the vehicle. Food Vending zones ■ City Council Recommendation ■ Similar to other jurisdictions • Sacramento ■ San Diego ■ Portland • Chicago ■ Recommendation part of the current city-wide General Plan Amendment. AMENDED ORIGINAL MOTION: Continue consideration of matter to the March 7, 2017 City Council Meeting. MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Benavides, Martinez, Sarmiento, Solorio, Tinajero, Villegas (6) NOES: None (0) ABSTAIN: Pulido (1) ABSENT: None (0) JOINT SESSION OF THE CITY COUNCIL AND THE HOUSING AUTHORITY 80A. CITY OF SANTA ANA CONDITIONAL LOAN AGREEMENT AND HOUSING SUCCESSOR AGENCY LOAN AGREEMENT WITH AMCAL MULTI -HOUSING, INC. FOR THE FIRST STREET APARTMENTS PROJECT; AND CITY COUNCIL MINUTES 24 FEBRUARY 7, 2017 1 OB-24 APPROPRIATION ADJUSTMENTS FOR THE LOAN AGREEMENTS {STRATEGIC PLAN NO. 5, 3C} At its regular meeting on January 25, 2017, by a vote of 6-0 the Community Redevelopment and Housing Commission recommended that the City Council and Housing Authority approve the recommended actions. The following spoke on the matter: • Isuri Ramos, representing the Kennedy Commission, supports project and recommendation. • Ana Urzua, spoke in support of proposal, project will provide tangible benefits for the renters in our community and allow for dignified living conditions. • Apolonio Cortes, member of SACReD, supports better living conditions; renters spend more than 50% of their salaries on housing costs. • Joese Hernandez, supports mobile food vendors and goes hand in hand with Sanctuary City; supports AMCAL project and affordable housing; need to protect all community residents. • Cesar Covarrubia, Executive Director of Kennedy Commission, opined that City needs to leverage state grants and invest in our community. Councilmember Sarmiento, would like to hear from Heritage and AMCAL developers to provide background and context as to proposed project. Mario Turner, representing AMCAL, provided support letters for the record. Ryan Olgunik, Heritage Project developer, indicated that they vetted AMCAL project and community benefits; noted that Keyser Marsten reviewed the fiscal feasibility. Councilmember Sarmiento, noted that Planning Commission approved and City Council committed to project in April of 2016; motion to approve item as recommended. Mr. Turner, stated that project has community support; tax credits needed to complete project; AMCAL owns the land; project in Housing Element area which is designated affordable housing site; commit to approve in March or July for tax credits. Councilmember Solorio, concerned with timing of project and pending tax reform that may have detrimental effects on project; requested comparable subsidy information to evaluate this project; supports continuance of item to evaluate all information and make determination. Councilmember Villegas, concerned that commitment to project will now allow City to fully leverage funds. Councilmember Benavides, pleased with units proposed and amenities offered; concerned with the amount of money the City is committing to the project; tying CITY COUNCIL MINUTES 25 FEBRUARY 7, 2017 1 OB-25 a market rate project with an affordable housing project has had issues (conflicts with timing) but project is needed; questioned developer of Heritage project about permit fee payments and timing. Mr. Olgunick, confirmed that permits and fees being processed with the cities of Tustin and Irvine. Councilmember Benavides, asked that if matter approved would be able to fund other projects. Robert Cortez, Deputy City Manager, noted that it appears City is able to provide assistance with other low income project; Keyser Marsten is doing a gap analysis on other projects. Councilmember Tinajero, supports project; noted that proposed project will serve low income residents; Motion to continue matter, seconded by Councilmember Solorio. SUBSTITUTE MOTION: Continue consideration of matter to obtain further information. MOTION: Tinajero SECOND: Solorio VOTE: AYES: Benavides, Martinez, Pulido, Sarmiento, Solorio, Tinajero (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Villegas (1) *Mayor Pro Tern Martinez left at 10:15 p.m. and did not return. Deliberation of matter done in conjunction with Agenda Item 80A. Councilmember Sarmiento, asked if delay would impact affordable housing project. City Attorney Carvalho, indicated that staff recommendation would allow the City to accept the funds from the developer, thus continuance would not affect the AMCAL project. CITY COUNCIL MINUTES 26 FEBRUARY 7, 2017 1 OB-26 Mr. Olgunik, noted that he would be providing deposit in 4-6 weeks. Councilmember Sarmiento, supports consideration of AMCAL and Heritage project together since there is a nexus. MOTION: Continue considedration of matter to the February 21, 2017 City Council Meeting. MOTION: Sarmiento SECOND: Tinajero VOTE: AYES: Benavides, Pulido, Sarmiento, Tinajero, Villegas (5) NOES: Solorio (1) ABSTAIN: None (0) ABSENT: Martinez(1) 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. DIRECT STAFF TO PREPARE A RESOLUTION CONDEMNING PRESIDENT TRUMP'S ANTI -IMMIGRANT EXECUTIVE ORDERS ON: WITHHOLDING FUNDS FROM SANCTUARY CITIES AND BARRING CERTAIN IMMIGRANTS AND REFUGEES FROM PREDOMINANTLY MUSLIM COUNTRIES FROM ENTERING THE COUNTRY - Councilmembers Benavides and Tinajero The following spoke on the matter: • Asmaa Ahmed, policy advocate for Greater Los Angeles Chapter, supports resolution. • Hugo Ivan Salazar, Labor Federation representative, supports initiative; opposed to any efforts to divide our community and immigrants throughout. • Khalil Dewji, supports all immigrants and minority that stand together in opposition to US President's orders. • Shabnam Dewji, supports proposal that will set the tone for other communities to follow; stand in unity with all that have been discriminated. • Naseer Shariff, request ordinance that will oppose Presidential Orders. • Rashad AI-Dabbagh, Director of Arabic Civic Counsel, decedent of refugees and supports item opposed to bigoted Order. • Masih Fouladi, noted that Court of Appeal and Federal Courts have ruled on order and released a Stay; in favor of resolution. Councilmember Benavides, thanked speakers for support; President's Executive Orders are divisive and perpetuate racism; read statement by Senator McCain who is a Republican against Order. CITY COUNCIL MINUTES 27 FEBRUARY 7, 2017 1 OB-27 Councilmember Tinajero, read poetic message about being vigilant and speak up for justice. Councilmember Sarmiento, expressed practical support for item; need to partner with organizations and provide resources. City Attorney Carvalho, noted that she will be meeting with community members and offer legal services. Councilmember Solorio, may need an Ad Hoc Committee to review matter and other legislative issues; need strong immigrant rights office. Councilmember Villegas, supports our Country; opined that we need to focus on City affairs and allow the courts to rule on matter. Mayor Pulido, opined that matter may have ramifications; Councilmember Villegas concurred. MOTION: Direct staff to prepare resolution for City Council consideration. MOTION: Tinajero SECOND: Benavides VOTE: AYES: Benavides, Sarmiento, Solorio, Tinajero (4) NOES: Pulido, Villegas (2) ABSTAIN: None (0) ABSENT: Martinez (1) *Councilmember Sarmiento left the meeting at 10:53 and did not return. ADJOURNED THE JOINT MEETING AT 10:54 P.M. AND CONVENED THE HOUSING AUTHORITY MEETING; FOLLOWED BY SUCCESSOR AGENCY MEETING AT 10:54 P.M. P.M.; RECONVENED THE CITY COUNCIL MEETING AT 10:55 P.M. WITH SAME MEMBERS PRESENT. COMMENTS PUBLIC COMMENTS • Albert Castillo, spoke on recent police shooting. • James Kendrick, supports City going back to former CDBG process; opined that social programs are investment in community and address public safety. • Hugo Munoz, concerned with police shooting; tragic loss. CITY COUNCIL MINUTES 28 FEBRUARY 7, 2017 1 OB-28 • Alexis Nava Teodoro, thanked Councilmember Sarmiento who wrote letter of support to Attorney General on deportation issues; Councilmember Tinajero testified in Sacramento on the matter; also upset about recent police shooting. • Angel Casas, demand justice for Steve Salgado who was shot by Santa Ana Police Officer; train our officers and protect our families. • Isabel Macedo, mother of victim, request justice; Mr. Salgado left 2 young children. • Nancy Salgado, sister of victim, upset about brother's death. • Theo Hirsch, supports education programs instead of additional public safety programs. • Karen Palmerin, demand justice for victim of police shooting; education needed. • Jesse Naranjo, request police accountability. • Ilya Tseglin, spoke of son who is in need to assistance. • Robert Tseglin, echoed comments by his father, Ilya. • Joese Hernandez, supports community engagement, many speakers were here for the first time; need reform. • Nali Hutzil, spoke out against police brutality. • Madeleine Spencer, reminded all that some councilmembers almost allowed City to file for bankruptcy; supports the Community Enhancement program and continuing matter that would provide low incoming housing and community oriented policing survey. 90A. CITY MANAGER'S COMMENTS Acting City Manager Mouet, highlighted Lorenia Jimenez and Christian Contreras who are adult and youth success stories. 90B. CITY COUNCILMEMBER COMMENTS Councilmember Tinajero: • Congratulated the wresting team at Santa Ana High School for championship; ranked 3rd in Orange County and top 40 in State; • Noted that Sean Mill has been appointed to the City of Riverside Planning Commission; and • Noted that City Council had spirited discussion and debate on a number of issues, but all advocate for the benefit of the greater the community. Councilmember Solorio: • Need to partner with SAUSD and business community to explore internship and summer employment programs and high speed wifi services; • Met with Chamber of Commerce Board on internship programs; • Supports open data platform and offer more information and services on-line such as number of officer involved shooting, crime statistics; requested updated on incident; body cameras how many and information on pilot program and roll out; • Prop 47 grant funding for divergent program; intervention youth programs needed; CITY COUNCIL MINUTES 29 FEBRUARY 7, 2017 1 OB-29 • Ryan Smolar effort to restore Chicano murals; supports efforts on block walls; and • Thanked colleagues for productive meeting. Councilmember Benavides: • Expressed disappointment that agenda item that would serve the youth the community was not approved by the majority of the City Council. Mayor Pulido: • CDBG and youth investments needed; and • Wilshire Square Neighborhood example should be copied — grow ivy to deter graffiti; and increase prevention efforts. Councilmember Villegas: • Indicated that the death of Mr. Salgado was a tragedy and District Attorney's Office is investigating matter. ADJOURNED - 11:46 p.m. - The next meeting of the City Council is scheduled for Tuesday, February 21, 2017 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting at 5:45 p.m. in the Council Chamber, 22 Civic Center Plaza, Santa Ana, California. Maria D. Huizar, Clerk of the Council FUTURE AGENDA ITEMS • Community Engagement Program • Drone Regulations CITY COUNCIL MINUTES 30 FEBRUARY 7, 2017 1 OB-30 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: DESTRUCTION OF OBSOLETE CITY RECORDS (STRATEGIC PLAN NO. 5, 1) CITI MANAGER CLERK OF COUNCIL USE ONLY; ."•C• _w ❑ As Recommended ❑ As Amended ❑ Ordinance on 1®` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENDED ACTION Approve the request for the destruction of obsolete records from the Clerk of the Council Office in accordance with the retention schedule outlined in City Council Resolution 2013-014. DISCUSSION On April 1, 2013, the City Council approved Resolution 2013-014 outlining the records retention schedule for the agencies, departments, and offices of the City. City records are governed by the Public Records Act which provides the period in which records need to be retained. The Citywide Records Team compiled the Citywide Records Retention Schedule which sets forth the retention period for a particular record. The Municipal Code requires that the destruction of a City record be approved by the City Attorney. In accordance with Section 5B of the Citywide Records Retention Schedule Resolution, the City Attorney has approved the list of records proposed for destruction from the departments as outlined in the attached documents. The Citywide Records Retention Schedule has specific retention periods for many City documents. The Schedule is modeled after the California Secretary of State's sample for local government and incorporates other statutory periods applicable to Santa Ana. These are minimum retention periods. Each department makes discretionary decisions on whether to retain records past the minimum requirements. 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. Exhibit: 1. Memo Request for Destruction of Records 19C-1 19C-2 ►��17 �'IZl1 To: Sonia R. Carvalho, City Attorney Date: February 13 2017 From Maria D. Huizar, Clerk of the Council Subject: REQUEST FOR DESTRUCTION OF RECORDS The Clerk of the Council requests your approval to destroy City records on the attached listing, in accordance with the retention schedule outlined in the City Council Resolution 2013-014. Thank you. Attachments: Clerk of the Council Destruction Schedule February 2017 0:11"I (]RECORDS,RETENTION B DESTRUCTIONICLERK 20171MEM0 DEPT RECORDS OESTR_REQUESjP&T�10Z 201ZOOC CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE CLERK OF THE COUNCIL OFFICE FEBRUARY 2017 RECORD RECORD SERIES RECORD DESCRIPTION RECORD START RETENTION PERIOD CATEGORY DATE CLERK- Miscellaneous Includes both incoming and outgoing Folder Year Date 2 years ADMINISTRATION Correspondence general correspondence, including letters and e-mail along with citizen 2014 feedback; Various files, not related to specific cases and not otherwise specifically covered by the retention schedule. Agendas Original Meeting Agendas: City Council, Folder Year Date Hardcopy - 2 COUNCIL Redevelopment Agency, Successor years; MEETINGS Agency, Santa Ana Financing Authority, 2013 -2014 Imaging Special Meetings, Commissions — Copy - agendas and packets can be imaged Permanent immediately for permanent retention, if (2004 to desired. A paper copy can be present) maintained for one year, if desired. Agenda Notices Notices — Public Meetings includeing Folder Year Date 2 years Special Meetings. 2013 -2014 Agenda Affidavits of Publication / Posting -Proof Folder Year Date 2 years Publications of publication or posting of legal notices — examples of legal notices: Notice of 2013 -2014 Public Hearing, Notice of Lien, etc. Agenda Packets Council Meeting, Successor Agency, Meeting Date Hardcopy - 2 Santa Ana Financing Authority, years, Commissions agenda packet materials, 2013 -2014 Imaging - e.g., Requests for Council Action Permanent (RFCA's) and backup information on (available Council Agenda items - Originals can be from 2004 to imaged immediately for permanent present only) retention, if desired. The imaged record can serve as the permanent record, if desired. FAIR Statements of Originals of statements of designated Filing Year 7 years (can POLITICAL Economic employees image after PRACTICES Interest - Form 2007-2009 2 years) (FPPC) 700 (originals) (non -elected) 19C-4 OBSOLETE RECORDS DESTRUCTION SCHEDULE CLERK OF THE COUNCIL OFFICE FEBRUARY 2017 RECORD RECORD START RETENTION CATEGORY RECORD SERIES RECORD DESCRIPTION DATE PERIOD GENERAL Payroll Leave of Absence Requests (LOAs) Pay periods, Year 2 years RECORDS and copy of departmental reports 2013 and 2017 OPEN Open Calendars City Council and Executive Year 2013 3 years CALENDARS (Sunshine Management Team calendars Provision) PUBLIC Public Records Requests from the public for documents Receipt Date 2 years RECORDS Requests retained by the City 2014 REQUESTS PREPARED BY: pe.13-17 C� w Date Norma Mitre Sr. Deputy Clerk of the Council RECORDS DESTROYED: Number of Boxes : _08/ CONSENT BY: Date Maria 0. Huizar Clerk of the Council APPROVED BY: Sonia R. Carvalho Date City Attorney 19C-5 19C-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: STRATEGIC PLAN MONTHLY REPORT FOR JANUARY 2017 (STRATEGIC PLAN NO. 5, 1) CITY &NAGER RECOMMENDED ACTION CLERIC OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 181 Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the Strategic Plan Monthly Report for January 2017. DISCUSSION The January 2017 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.org/strategic-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. 19D-1 19 D-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: FEDERAL AND STATE LOBBYIST YEAR END SUMMARY (STRATEGIC PLAN NO. 1, 2, 3, 4, 5, 6, 7) �f CITI MANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: /_1J7101TI47 ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 't Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER The City of Santa Ana's state and federal lobbyist have provided a report, respectively, summarizing key legislation, regulations, and other relevant information that occurred throughout 2016. State lobbyist, Townsend Public Affairs, highlighted activities that occurred with the State legislature and provides an outlook of issues that will occur in 2017 (Exhibit 1). Federal lobbyist, Holland & Knight, provides a summary of the important federal actions taken in 2016 and federal priorities to observe for 2017(Exhibit 2). STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #1 — Community Safety, Goal #2 — Youth, Education, Recreation, Goal #3 — Economic Development, Goal #4 — City Financial Stability, Goal #5 — Community Health, Livability, Engagement, & Sustainability, Goal #6 Community Facilities, Goal #7 — Team Santa Ana FISCAL IMPACT There is no fiscal impact associated with this item. EXHIBIT: 1. Townsend Public Affairs Year End Summary 2. Holland & Knight Year End Summary 19E-1 19E-2 P U 6 L I C A F F A I R S To: City of Santa Ana From: Townsend Public Affairs, Inc. Date: February 13, 2017 Subject: 2016 Year End Legislative Update The Legislature completed their work and adjourned the 2015-16 legislative session early in the morning on September 1, 2016. The new Legislature convened the 2017-18 session on December 5, 2016, to swear -in members, and then adjourned until they begin the new session the first week of January 2017. In the final days before adjournment, the Legislature considered hundreds of bills that were pending before them. The topics that took center stage at the end of session included: climate change, Cap and Trade, overtime pay for farmworkers, and tributes for outgoing members of the Legislature. After the Legislature concluded their work, the Governor had until September 3011 to act on all legislation passed by the Legislature. After the Governor considered all bills, he ultimately signed 900 bills and vetoed 150; a veto rate of 15 percent. While the veto rate may sound low, it represents Governor Brown's highest rate during any of his four terms as Governor. The Governor vetoed several bills that attempted to establish new tax credits, expend new funds, or fund new programs. In several of his veto messages, the Governor indicated he would like to consider these types of proposals during the Budget negotiations in June, in order to maintain optimal fiscal forecasting and a balanced budget. Legislative Activity Over 2,300 bills were introduced by the Assembly and Senate during the most recent legislative session; however, a great number of those bills failed to meet legislative deadlines and a little less than half were sent to the Governor for his consideration. Below are brief summaries of measures that the City took a position on, as well as items of interest to the City, and the final action on each measure. Bills with Official Positions: o AB 1217 (Daly) — The City adopted a support position on this bill last year. After going through several amendments, the final version of this measure codified the action taken by the Orange County Fire Authority to prohibit the board from containing alternate members. The Governor signed this measure on September 23, 2016. Exhibit 1 State Capitol Office - 925 L Street • Suite 1404 • Sacramento, CA 95814 • Phone (916) 447-4086 • Fax (916) 444-0383 Federal Office - 600 Pennsylvania SE • Suite 207 • Washington, DC 20003 • Phone (202) 546-8696 • Fax (202) 546-4555 Southern California Office - 1401 Dove Street • Suite 330 •. rt ach, CA 92660 • Phone (949) 399-9050 • Fax (949) 476-8215 Central California Office • 744 P Street • Suite 30 93721 • Phone (949) 399-9050 • Fax (949) 476-8215 Northern California Office • 300 Frank Ogawa Plaza • Suite 204 • Oakland, CA 94612 • Phone (510) 835-9050 • Fax (510) 835-9030 AB 2031 (Bonta) — The City adopted a support position on this bill. This measure allows cities or counties to pass an ordinance to issue bonds for affordable housing without raising taxes or diverting property taxes from other sources. AB 2031 allows cities or counties to access their net available revenue, commonly referred to as boomerang funds, to use bonds for affordable housing. The Governor signed this measure on September 22, 2016. SB 443 (Mitchell) — The City adopted an oppose position on this bill last year. This bill, which deals with the circumstances under which law enforcement can seize assets was amended at the end of session to remove the main concerns of law enforcement associations. The final version of the bill states that a conviction is required for the forfeiture of assets, accept for cash seizures more than $40,000. The Governor signed this measure on September 29, 2016. o SB 969 (Nguyen) — The City adopted a support position on this bill. This measure permits a facility to sell Vietnamese rice cakes that have been at room temperature for up to 24 hours. The Governor signed this measure on August 25, 2016. Medicinal Cannabis: Three of the major bills relating to medicinal cannabis that were introduced last session failed to pass out of the Legislature. The Legislature is likely to introduce numerous bills related to cannabis in the new session, a major focus will be on reconciling medical cannabis laws with the recently approved Proposition 64 that was on the November ballot. Additionally, the Administration is working to finalize regulations for medicinal and adult use of cannabis so that they can begin issuing permits in January 2018. o AB 1575 (Bonta) — This bill contained numerous clean-up provisions to the medicinal cannabis framework adopted in 2015, as well as new provisions in several areas, including: licensing authorities and restrictions, dispensaries and deliveries, research and development, testing, and local authority for fees and ordinances. This bill was held in the Senate Appropriations committee. AB 2243 (Wood) — This bill would have imposed a tax on the distribution in this state by a licensed cultivator of medical cannabis flowers, medical cannabis leaves, and immature medical cannabis plants to a licensed distributor and would require the licensed distributor to collect the tax from the cultivator and remit it to the State Board of Equalization. Revenues would be used fund competitive grants for local law enforcement -related activities pertaining to illegal cannabis cultivation; to fund environmental cleanup restoration and protection of public and private lands that have been damaged by illegal cannabis cultivation; and to address the environmental impacts of cannabis cultivation on public and private lands in California and fund other state enforcement -related activities pertaining to illegal cannabis cultivation. This bill was held in the Senate Appropriations committee. o AB 2300 (Wood) — This bill would provide that a qualified patient is not permitted to engage in the smoking of medical marijuana in any location that is prohibited by a landlord. This failed to pass off the Senate Floor. Other Items of Interest: o AB 2444 (Garcia) —This bill proposed to place a park bond on the November 2016 ballot. The final version of the bill proposed a total bond amount of $3.5 billion for 2016 Year End Legislative Update A February 13, 2017 19E-4 2 EXHIBIT 1 numerous different funding programs. The bond included per capita allocations to cities, competitive grants for park poor communities, funding for the Santa Ana River Conservancy program, and other funds which could be available to the City. The bill was ultimately held by the author and he has agreed to work with the Governor and legislative leadership to try and craft a park bond that can be placed on the ballot it 2018. SB 1298 (Hertzberg) — This bill proposed to make changes to the Proposition 218 Omnibus Implementation Act. Specifically, the bill would have made changes to the definition of "sewer' in such a way that would provide parity for stormwater and flood control programs in their ability to raise capital. Even though the bill was amended to remove controversial provisions, including the allowance of tiered rate structures and lifeline rates, it was unable to garner the necessary support to pass out of the Assembly. The bill was held on the Assembly Floor. Cap and Trade At the end of the legislative session, the Administration and Democratic leadership in the Legislature were finally able to reach agreement on a cap and trade spending plan. The main bill, SB 830, contained the proposed funding for cap and trade for the current fiscal year and an accompanying bill, SB 859, contained policy changes to some of the funding programs. While the overall spending plan, which appropriated $900 million in the current fiscal year, was not as large as some wanted, it does represent the first comprehensive spending plan of cap and trade dollars since late 2014. It should be noted that the last several cap and trade auctions have not brought in significant revenues, the last two auctions generated less than $10 million each, so the prospects of future funding plans are not clear at this point. Additionally, there are still pending lawsuits that are challenging the legality of the cap and trade auction programs. Below is a brief highlight of the items contained within the $900 million cap and trade expenditure plan: i $150 million for the Heavy Duty and Off -Road Investments to help develop and pilot cleaner industrial vehicles, buses, and port equipment with new low or zero emissions; i $140 million for the Transformative Climate Communities program to allow for a community -wide approach for disadvantaged communities specified in statute to implement an integrated transportation, housing, and green space development plan to reduce pollution and improve local quality of life; $135 million for the Transit and Intercity Rail Capital program, helping fund essential local capital projects to keep Californians moving by bus and commuter rail; $133 million for a reformed Clean Vehicle Rebate Project, which help low and middle income families purchase the newest, cleanest vehicles available; • $80 million for the Enhanced Vehicle Fleet Modernization program to provide low income families help in replacing their existing polluting vehicle with a newer, cleaner vehicle; f $80 million for the Urban Greening program, to create green spaces and parks in communities in California that lack green space; i $50 million for programs that help dairies reduce emissions and pollution associated with animal manure; • $40 million for waste diversion projects for organic material which fund projects that have a double environmental benefit of capture greenhouse gases while also reducing methane emissions; 2016 Year End Legislative Update February 13, 2017 19E-5 EXHIBIT 1 $25 million for the Healthy Forest program, which preserves existing forests by reducing the threat of wildfires by reducing fuels, removing dead trees, and providing long-term protection to forest land; $20 million to help individuals in low-income communities reduce their energy use with weatherization and energy efficiency improvements, including solar installations; i $15 million to continue the successful Urban Forestry program, which helps urban disadvantage communities plant trees in their neighborhood; $10 million for the Active Transportation Program to fund bicycle and pedestrian programs that make walking or biking to school and work safer and easier; $7.5 million for the Healthy Soils program, to establish innovative farming practices that capture carbon, reduce water use and improve soil health; i $7.5 million to continue the successful State Water Efficiency and Enhancement Program (SWEEP) which helps replace older inefficient water irrigation and pumping equipment with new state-of-the-art replacements that pollute less and save water; I. $25 million for the Healthy Forest program, which preserves existing forests by reducing the threat of wildfires by reducing fuels, removing dead trees, and providing long-term protection to forest land; $5 million to reduce black carbon emissions by supplementing successful local programs to reduce wood smoke pollution through fireplace, stove, and heater replacement; $2 million to assist disadvantaged communities and local governments with developing climate action plans. Transportation Infrastructure Funding There were many different transportation proposals put forward during the legislative session, including two different proposals by the Democrats, a proposal by the Republicans, and a proposal by the Governor; however, none of the various could garner the two-thirds support needed for passage before the adjournment of the legislative session. The inability to get a two- thirds vote was largely due to the Republicans opposition to any new revenue raised through tax or fee increases. At the end of the legislative session in August, there was discussion by legislative leadership about possibly calling a lame -duck session after the November election to deal with transportation. Ultimately, a lame -duck session was not called, but the Governor, Pro Tem, and Speaker issued a joint statement reaffirming their commitment to finding a solution for long-term transportation funding. To that end, Assembly Member Frazier and Senator Beall each introduced a transportation funding proposal as the first bill introduced in their respective House this session and the Governor has included a transportation proposal as part of his January budget. Looking Ahead The deadline to introduce bills in the first year of the 2017-18 legislative session is February 17, 2017. It is anticipated, that once that deadline passes, nearly 3,000 bills will be introduced and eligible for consideration in 2017. It is likely that many of the items that were unsuccessful last year will be reintroduced this year, in addition to the new bills that will be brought forward on a host of issues. One new dynamic that is already being felt in Sacramento, is the new tenor of the relationship between California and the Trump Administration. Legislative leaders and the Governor have -- - already shown their -willingness -to-confront the new President on many of his priorities -that could 2016 Year End Legislative Update February 13, 2017 19E-6 4 EXHIBIT 1 have an impact on California and its residents. It is likely that there will be legislation to deal with issues where the State and Federal government disagree, such as immigration, environmental regulation, and sanctuary cities. Governor Brown, in his State of the State Address, confirmed that he will work to defend Californians from the Trump Administration. The Governor also indicated that California cannot just be on the attack, but must find areas in which it can work with the new President. Once such area may be on critical infrastructure projects in California; the President has already begun to talk about a broad proposal to build infrastructure throughout the country, and Governor Brown has submitted a list of over 50 projects in California that could fit into the President's proposal. Below are items that have either been introduced, or are likely to be introduced, that may be of interest to the City: Sanctuary Cities — With the election of President Trump, there has been a focus on what activities the new Administration poses as they relate to immigration. During the President Trump's first days in office, he signed several Executive Orders, including one relating to increased immigration enforcement. In his Executive Order, the President asked federal agencies to look at ways in which the federal government may be able to withhold funding from sanctuary cities. Knowing that the topic of sanctuary cities was likely to draw the attention of the new Administration, Senate Pro Tern De Leon introduced legislation earlier this year, SB 54, that would limit state and local law enforcement agencies involvement in immigration enforcement, as well as ensure that individuals can seek services and interact with state agencies without regard to their immigration status. This legislation is a high priority for the Pro Tern and has already passed out of its first policy committee. During the committee hearing, numerous individuals and organizations testified in favor of the measure, including Council Member Tinajero. In addition to the introduction of SB 54, the Legislature and Governor Brown have indicated that they will use their power and authority to protect Californians, to the fullest extent possible, from federal authorities. Other measures have already been introduced in the Legislature that would provide legal services to those that are facing deportation, eliminate the ability of local governments to enter or extend contracts to detain immigrants facing deportation proceedings. While not included in the January Budget release by Governor Brown, it is likely that the Legislature will look to discuss potential funding options for sanctuary cities should the Trump Administration decide to withhold federal funding. The State, as well as sanctuary cities, receive significant levels of funding from the federal government and it is unclear what funding, if any, could legally be withheld from individual cities or from the State. The topic of funding for sanctuary cities will likely emerge as the Legislature conducts Budget Committee hearings and the Governor prepares to issue the May Revise; unless federal actions require the State to take more immediate action. Transportation Infrastructure — As indicated above, finding a long-term solution for the funding of transportation infrastructure remains a key item for the Governor, the Senate Pro Tem, and the Assembly Speaker. The Governor included his transportation infrastructure proposal from last year as part of his January Budget. Additionally, AB 1 (Frazier) and SB 1 (Beall) have been introduced in the Legislature and both contain proposals for raising billions of dollars for transportation infrastructure. (D 2016 Year End Legislative Update February 13, 2017 19E-7 5 EXHIBIT 1 Unlike 2016, this year the Democrats control two-thirds supermajorities in both the Assembly and the Senate, meaning that they do not need any Republican support to approve a transportation proposal. The Democrats will be negotiating with the Brown Administration to determine what level of transportation funding would be appropriate, as the proposals in the Legislature would generate significantly more money than the proposal put forth by the Governor. Additionally, it will need to be determined if the Legislature is willing to vote for the taxes and fees that they propose to increase to generate revenue or if they may instead opt to place a measure on a statewide ballot for voters to consider. As these discussions take place, there are numerous stakeholders that are applying pressure on the Legislature and Governor to reach agreement and approve a proposal this year. While the exact funding levels are still to be determined, it should be noted that all the proposals contain core elements that would receive funding; one such item in all proposals is funding for local streets and roads. Cannabis — In 2015, the Legislature approved a regulatory framework for medicinal cannabis. Additionally, last November voters approved Proposition 64, which allows for the adult -use of cannabis. The goal of the State is to have regulations in place for both medical and adult -use so that the State may begin issuing licenses in 2018. There have already been several bills introduced in the current legislative session that relate to marijuana. It appears that the primary vehicle in the Legislature for dealing with issues between medical marijuana and adult -use will be AB 64 (Bonta). This measure currently contains several provisions, but will likely be amended several times as it moves through the legislative process to reflect additional issues and negotiations between stakeholders and the Brown Administration. Other legislation deals with varying aspects of cannabis regulation, including rules for marketing, tools for law enforcement to identify and deal with those under the influence of cannabis, and issues related to banking. Additionally, the Brown Administration has indicated that they will be putting forth a budget trailer bill relating to medicinal cannabis and adult -use and how to treat the two systems. The Governor's Office has begun to gather the heads of the state departments together to determine how best to move forward and align the medical and adult -use industries. It is unlikely that specific language will be released until later in Spring, potentially as late as the May Revise. Affordable Housing and Homelessness — The issues of affordable housing and homelessness will continue to be legislative priorities in 2017. Since the dissolution of redevelopment, the Legislature has made several attempts at crafting legislation to develop a permanent source of funding for affordable housing; however, none of these attempts have been successful. At the same time, numerous pieces of legislation have been introduced that have attempted to address issues surrounding homelessness in California. Many of the bills on homelessness have focused on ancillary issues, such as sleeping in vehicles, and not focused on the root causes of homelessness. In addition to the conditions that have led to previous bills being introduced, the cost of housing has continued to rise in many parts of the State, to the point that many traditionally middle class families are struggling to find affordable housing. Last year the Governor attempted to attach a proposal to the state budget that would have made affordable housing funding available on the condition that the Legislature approved the Governor's 2016 Year End Legislative Update February 13, 2017 19E-8 EXHIBIT 1 proposal for "by -right" affordable housing. This proposal would have made the approval of housing developments, that met certain criteria, a ministerial act that was not subject to the further imposition of conditions by a local government. Ultimately, the Legislature did not approve the Governor's proposal. While the "by -right" proposal did not succeed, it demonstrated that the Brown Administration was willing to advance policy changes needed to speed up the location and development of housing projects. It is likely that there will be legislation introduced in 2017 to reduce or eliminate regulation that slows down or prevents local housing development. At this point, it is not clear if there will be additional funding available for affordable housing, as the Governor did not include any new funding as part of his January budget. Furthermore, the Governor's budget reverts the funding that was set aside for affordable housing last year, as the Legislature did not approve the Administration's "by -right" proposal. It is also likely that the Legislature will introduce new bills to deal with homelessness. Numerous areas of the state are dealing with large homeless populations and trying to determine what housing options are available, what health and mental health services may be available, and what skills training programs may be available to help individuals develop skills that will help them integrate into the workforce. It is likely that legislation will touch on these aspects of homelessness. 2016 Year End Legislative Update February 13, 2017 19E-9 t�I;R:31�i1 19E-10 I:mfmlMM 800 17"' St. NW I Washington, D.C. 20006 1 T 202.955,3000 1 F 202.955.5564 Holland & Knight LLP I w .hklawxom Memorandum Date: February 13, 2017 To: Gerardo Mouet, City Manager From: Dan Maldonado, Senior Policy Advisor Leslie Pollner, Senior Policy Advisor Re: Federal Update This memo provides a brief overview of Holland & Knight's work with the City of Santa Ana in 2016. In addition, this memo highlights important federal actions taken at the end of 2016 and in the beginning of 2017 that impact the City's priorities. I. Progress to Date 2016 Accomplishments In 2016, the Holland & Knight (HK) team made significant progress on several of the City's key issues, including: Empowerment Zone: Empowerment Zone tax incentives were extended by the 2015 Tax Extenders package passed by Congress in December 2015. This includes the empowerment zone hiring tax credit that was nearly eliminated in the previous session of Congress. While the tax extender package was not addressed in fiscal year (FY) 2016, we anticipate them being addressed in 2017, potentially as part of tax reform. • Streetcar: The President's FY 2017 Budget included $125 million for the Santa Ana/Garden Grove in New Starts funding. This is a critical step in the process as the City and OCTA work to secure a Full Funding Grant Agreement with US DOT. In addition, we worked with Sen. Feinstein's office to have the Santa Ana streetcar included in her letter of support to the Office of Management and Budget. Additionally, the Senate FY 2017 Transportation, Housing and Urban Development (THUD) appropriations bill included funding for the Streetcar ($250 million to be divided among three California projects) and the House THUD bill included $75 million for the project. The FY 2017 appropriations bill, which includes transportation spending, could end in a full year continuing resolution (CR), meaning that FY 2016 funding levels will be extended. Meanwhile, the FY 2018 appropriations process is expected to begin this spring. H&K will be monitoring the appropriations process closely to advocate for streetcar funding. Exhibit 2 Trim Members of the Santa Ana team traveled to Washington D.C. in 2016 and met with a variety of governmental and congressional staffers. Meetings included staff at the White House; the Federal Emergency Management Agency (FEMA); COPS Office at the Department of Justice (DOJ); Department of Transportation (DOT); and the Department of Housing and Urban Development (HUD). The group also traveled to Capitol Hill and met with Senator Boxer and Senator Feinstein's offices, and Congresswoman Loretta Sanchez's office. HOME Funding: The President's FY 2017 budget requested $950 million for the HOME Investment Partnerships, of which $10 million was set aside for the Self-help Homeownership Opportunity Program (SHOP). This funding level is consistent with 2016 enacted levels and is a significant increase from the cuts originally proposed to the program in the Senate THUD appropriations bill. H&K helped the City work in cooperation with several other cities impacted by the cuts and successfully helped raise the funding levels in the final FY 2016 omnibus package. • COPS: In 2016, Santa Ana received $1.25 million to hire 10 officers, building on the City's successful track record with the COPS program. UASI: Once again, Santa Ana successfully received UASI FY 2017 funding in the amount of $5.43 million. II. Ongoing • Monthly Calls: Host monthly calls with city staff; more frequently as needed. • Grant Assistance: HK continues to monitor funding opportunities at the federal level for the City and continues to provide a weekly grants newsletter that highlights opportunities of relevance to local government. • Communication with Senators and Representatives: Maintain regular contact with Santa Ana's congressional delegation. III.2016 Federal Update Congress Passed FY 2017 Continuing Resolution On December 9, 2016, the Senate voted to pass a continuing resolution (CR), averting a government shutdown that was set for midnight. The CR extends current government finding levels to April 28. The House passed the CR first on December 8, and subsequently adjourned for the remainder of the year. The spending bill follows the annualized limit on discretionary spending of $1.07 trillion, as called for in the budget deal reach in 2015. Had the bill followed the 20 t 5 limit of $1.067 trillion, agencies would have had to adjust their budgets for the next four months to account for the decrease —an approach strongly opposed by the Department of Defense. 2 191 T2 Notably, the CR included: • $170 million in funding to address Flint, Michigan's water contamination issues; • $10 billion in war funding; • $7 million to reimburse the New York Police Department for the cost of security for President Trump, which is far less than the $35 million that the city requested; • $4.1 billion in disaster aid for Louisiana and other states affected by Hurricane Matthew, as well as flood, drought, and other weather -related emergencies; • $500 million to help states combat the opioid crisis; and • $870 million for the 21" Century Cures Act a new law designed to advance medical research. Congress Passed Final Water Resources Bill On December 10, the Senate passed the final water resources bill, concluding the 1141h Congress. The House passed the final bill on December 8. Both the House and Senate approved their respective versions of the bill in September with overwhelming support. Conference negotiators resolved the bills' differences on December 5, and promptly released the final version. The House renamed the Water Resources Development Act to the Water Infrastructure Improvements for the Nation (WIIN) Act (S. 612). After passing the House, the bill faced unexpected opposition in the Senate from its Democratic author —Senator Barbara Boxer (D-CA)—due to the last-minute addition of California drought language sponsored by Majority Leader Kevin McCarthy (R-CA) and Senator Diane Feinstein (D-CA). The language aims to provide drought relief to central and southern California, but drew criticism from Senator Boxer because it would temporarily loosen environmental standards and divert more water to corporate farmers. Nevertheless, the Senate voted to pass the bill. The bill authorizes 30 new Army Corps of Engineers projects in navigation, natural disaster management and ecosystem restoration projects; and modifications to eight existing projects. The final conference report (S. 612) includes: • Authorization of $11.7 billion for Army Corps of Engineers navigation and flood control proj ects; • Authorization of $170 million for lead contamination issues in Flint, Michigan; • Allows the Secretary of the Army to conduct an evaluation to improve water supply conservation measures when a drought emergency has been declared in a state; • Authorization of $300 million in grants over five years to help small communities comply with the Safe Drinking Water Act; and • Directs the Environment Protection Agency (EPA), in conjunction with the Department of Interior, USDA, NOAA, along with state and local governments, to develop non - regulatory national drought resilience guidelines relating to drought preparedness planning and investments. IV. 2017 Federal Update The 115`h Congress began on January 3. The Senate is comprised of 52 Republicans and 48 Democrats. In the House, there are 241 Republican seats and 194 Democratic seats — 218 seats 3 19Em=T13 are needed for a chamber majority. Since Senate Democrats can successfully block legislation using the filibuster (which requires 60 votes to overcome), Republican Leaders will need to work together with Democrats to advance major pieces of legislation, including transportation and infrastructure financing. Donald Trump was sworn in as the 451h President of the United States on January 20. Since then, President Trump has continued to issue actions consistent with his campaign platform in Donald J. Trump's Contract with the American Voter. Notably, on January 31, President Trump announced his nominee to replace the late Justice Antonin Scalia, Judge Neil Gorsuch, a federal appeals court judge in Denver, Colorado. If confirmed by the Senate, Gorsuch is expected to play a conservative role on the court. There are a number of issues pending at the federal level that could impact Santa Ana: Immigration Sanctuary Cities On January 25, the President issued an executive order (EO), which directs the AG and the Secretary of DHS to eliminate federal funding for sanctuary cities. Under the EO, sanctuary cities is defined as "...willfully refus[ing] to comply with 8 U.S.C. 1373." According to this statute, a sanctuary policy is "sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." This same EO also empowered U.S. Immigration and Customs Enforcement (ICE) to enforce the laws, identify criminal aliens, triple ICE enforcement and removal operations/agents, create a victim's advocacy office for victims of crime by illegal aliens, collect unpaid fines from illegal immigrants, and increase transparency. While it is unclear how the Administration will define "federal funding", we expect the President to attempt to defund "sanctuary cities" in some way. Defunding legislation may need a legislative vehicle —either stand-alone legislation or provisions added to an appropriations bill. If Trump takes the stand-alone legislative route, a bill could look similar to previous congressional efforts to withhold federal discretionary funding from sanctuary cities. This includes legislation sponsored by Sen. Pat Toomey (R-PA) intended to strip congressional funding from sanctuary cities, including law enforcement grant programs and Community Development Block Grants for affordable housing, anti -poverty programs and infrastructure development. House Republicans have also made legislative attempts to punish sanctuary cities. Last year, the House passed, mostly along party lines, Enforce the Law for Sanctuary Cities Act, which would deny some federal funding for jurisdictions that prohibit law enforcement from asking people about their citizenship or immigration status. However, denying all federal funding to sanctuary cities would be difficult to implement, as well as raise serious constitutional issues. It is possible that Republicans may specifically target certain discretionary grants —such as those from Department of Justice —which provide important funding support to emergency services, including police and firefighters. Moreover, since Republicans do not have enough votes to overcome the Democratic -led filibuster, any immigration legislation will need bipartisan input. 0 l[%J_�_G_7 On January 31, San Francisco (city and county) sued over the President's authority to withhold funding from "sanctuary cities." Subsequently, Santa Clara County, and Chelsea and Lawrence, Massachusetts, who filed a joint complain, have sued the administration over the EO. In their complaint, San Francisco sought declaratory and injunctive relief against the United States of America and certain federal officials for violating the 10a' Amendment (Anti -Commandeering Principle) and further sought a declaration that the City and County of San Francisco comply with 8 U.S.C. Section 1373. DACA The President recently indicated that he intends to issue his administration's policy on the Deferred Action for Childhood Arrivals (DACA) program in the next few weeks. Separately, the sanctuary city EO may implicitly rescind the Obama Administration's November 14, 2014 immigration executive action, which created the Deferred Action for Parents of Americans and Lawful Permanent Residents (DADA) program and expanded the 2012 DACA program. The action was never codified into law. This EO comes soon after a federal judge overseeing a challenge to President Obama's unilateral immigration reforms put the case on hold for two months while President Trump decides what to do with the policies. The original lawsuit was filed by 26 states, arguing that President Obama violated the U.S. Constitution's separation of powers by acting without congressional approval. If DAPA and DACA, are struck down, Congress would have to act to reverse this change in policy and seek to codify President Obama's executive action to protect people brought to the U.S. as children. Since Republicans hold a majority in both chambers, passing a bipartisan DACA bill will be difficult, especially in the House. Some Republicans in the Senate, namely those who cosponsored the Bridge Act —including Sens. Murkowski (R-AK), Flake (R-AZ) and Graham (R-SC)—which would provide temporary relief from deportation and employment authorization to individuals who are eligible for DACA. FY 2017 & FY 2018 Budgets/Appropriations Budgets To overcome the filibuster, Republicans will use procedural tools that only require a simple majority (50 votes) to pass controversial legislation. One such tool is the budget reconciliation process. This year, Republicans will use two budget reconciliations (resolutions) to accomplish two major priorities: ACA repeal and replace (FY 2017) and tax reform (FY 2018). The first budget resolution to repeal the ACA was passed by the Senate on January 12 and the House on January 13, and does not require the president's signature. The President recently noted that a GOP replacement plan could take a year. The FY 2017 resolution is currently being reconciled. The FY 2017 budget resolution includes reconciliation instructions to four authorizing committees —Ways and Means and Energy and Commerce in the House and Finance and Health, Education, Labor, and Pensions in the Senate —to allow immediate action on repeal of the ACA once reconciled. Once the committees finish drafting their changes, they will be sent to the budget committees, which merge the language into a single bill. Then the House and Senate will act on the bills produced by their budget committees. In the House, this is likely an up -or -down vote on the product whereas in the Senate any amendments meeting the budget -related requirement could be offered. Finally, the House and Senate would need to resolve differences in 5 1 Msll5 their bills and a final bill would then be passed and sent to the President who, presumably, would sign it into law. Appropriations Early in 2017, Congress will need to address appropriations for two fiscal years. Lawmakers punted the FY 2017 appropriations bill last Congress in a continuing resolution (CR) that expires on April 28, 2017. As a result, Congress must determine whether to extend the current CR for the rest of the fiscal year, or try to pass an appropriations package. Many observers believe that Congress may pass a defense appropriations bill (and potentially a defense supplemental to provide funding for the border wall); however, time constraints will likely force Congress to extend all other funding through a CR for the remainder of the year. Meanwhile, the President and Congress will also need to focus on the FY 2018 appropriations process in the spring. The President's budget is due in February —a deadline that was missed. Once Congress receives the President's budget in the spring, they will begin crafting legislation. Around this time, members of appropriations committees will accept requests from stakeholders. Appropriations subcommittees will hold hearings and mark ups, and then the full committee will vote on each individual bill. Debt Ceiling Negotiations & Spending Caps Congress and the Administration will also face a major legislative hurdle: sequestration. When the Budget Control Act of 2011 was enacted, it set in motion very low spending caps, limiting federal funding for defense and non -defense discretionary programs. Since then, Congress has reached short-term agreements to increase spending above the caps and avoid sequestration —or across-the-board spending cuts that are triggered when Congress spends more than the caps allow. Most recently in October 2015, Congress reached a two-year agreement to increase the spending caps for FY 2016 and FY 2017 and to suspend the debt ceiling through March 2017. Low spending caps are slated to return in FY 2018, however, unless Congress acts again. For the last several years, Congress agreed that parity was central to any spending negotiations so that the impact of these spending caps fell equally on defense and non -defense programs. However, President Trump has indicated that he wants to eliminate parity by lifting the spending caps for defense programs. Such an action could result in placing the full weight of budget limitations on non -defense programs. Further, he has proposed cutting non -defense spending by an additional 1 percent each year for the next 10 years. Both of these proposals could devastate funding for many critical programs and significantly impede negotiations on FY 2018 appropriations. Affordable Care Act (ACA) Process The FY 2017 budget reconciliation bill could repeal all of the ACA's tax and revenue provisions, as well as its spending provisions —such as the premium tax credits to subsidize the purchase of insurance policies, the various forms of financial support for insurers offering plans, and the funding for expanded Medicaid matching fiords to cover adults. But some provisions probably 19E'=120 cannot be repealed (e.g. requirement that insurers cover young adults through age 26) because they do not meet the requirement of being directly budget -related. And to "replace" Obamacare, the same rule applies —only provisions that are directly budget related can be put in a reconciliation bill. So, for example, the GOP could create a new tax credit, a new insurance subsidy, a new pool of funds for states to use with the uninsured, or a revised funding allocation for Medicaid. But it may be a tough argument with the Senate Parliamentarian that revising insurance regulation, redefining required benefits, and making major reforms to the rules of the Medicaid program can fit in this bill. Replacement Plan President Trump recently vowed that his healthcare replacement would provide "insurance for everybody," but Republicans have not yet reached consensus about a replacement healthcare plan. We expect the new plan to eliminate Medicaid expansion, but how states will receive federal Medicaid funding is unclear. Options include block grants or per -capita grants, where states receive a fixed sum for each participant. Thus, it is possible that overall federal Medicaid funding will decrease. Several reform bills have been introduced in the last few weeks. Most notably, the Cassidy -Collins plan, the Patient Freedom Act of 2017, which would give states three options: keep the current ACA system, reject any federal assistance, or transition to a new program that will automatically enroll eligible individuals in a high -deductible plan linked to a health savings account. Their plan calls for initially keeping the ACA taxes and transitioning to the new system by 2020. Timeline The original Republican plan was to quickly move legislation that would repeal as much of Obamacare as possible, probably with a one or two year delay in the effective date of those repeal provisions, and leave the question of developing and adopting a replacement approach to later legislation. House Republicans hoped to complete the reconciliation process and have a repeal bill on the President's desk by February 20th. The Republicans did not want to replace one 2,700 page bill with another one. They also did not want to get into a messy internal debate about how to replace Obamacare. However, that approach is becoming less and less appealing politically. As a result, there is now an increasing number of statements from senior elected GOP officials and the President articulating different approaches such as "step -wise" repeal and replace, "nearly simultaneous" repeal and replace, or doing it all at once. The direction of movement is toward having more replacement features included in the repeal bill that is considered in the next few months under the protection of reconciliation. Impacts of Repeal According to a 2010 Congressional Budget Office report, overhauling the ACA could cause 32 million people could lose coverage and double premiums by 2026. Further, the cost of repealing the law will be at least $350 billion; and some estimates say $9 trillion in the long -teen. Eliminating the insurance premium tax credits and Medicaid expansion could result in $140 billion loss in federal funding for health care in 2019, leading to the loss of 2.6 million jobs (mostly in the private sector) that year across all states. A third of lost jobs are in health care, 19EPu17 with the majority in other industries. If replacement policies are not in place, there will be a cumulative $1.5 trillion loss in gross state products and a $2.6 trillion reduction in business output from 2019 to 2023. States and health care providers will be particularly hard hit by the funding cuts. Tax Reform Municipal Bond Tax Exemption Another top priority for Congress is reforming the tax code, which House and Senate Republicans plan to do through the FY 2018 budget resolution, which is expected to come up this spring. The tax package may, in part, help to pay for an infrastructure package. President Trump and Congress have proposed including significant cuts to income tax rates, keeping rates low on investment, and to eliminate the estate tax. A serious concern for local jurisdictions is a proposal that would eliminate the tax-exempt status on municipal bond interest, which is critical for job and infrastructure creation, and has been on the table in the past and may resurface again. It is estimated that eliminating the tax -exemption would generate approximately $500 billion over 10 years to pay for other tax cuts. The President has previously promised to work to maintain the tax-exempt status. State & Local Tax Deduction The President's tax plan would cap itemized deductions for higher earners, and the Republican tax reform plan would entirely eliminate the state and local tax deduction. New York Governor Andrew Cuomo, and other state and local leaders, have asked Donald Trump not to eliminate this deduction, arguing that the cut would devastate states like New York and California. The deduction is known to disproportionately benefit wealthy individuals and Democratic areas like major cities. Moreover, this provision is among the most expensive for the federal government. The tax reform blueprint released by House Republicans in June 2016 lowers tax rates, but eliminates all itemized deductions, except those for mortgage interest and charitable giving. Quantifying the impacts of doing away with this deduction will be important to advocacy efforts. Transportation/Infrastructure President Trump's pick to lead the Department of Transportation, Elaine Chao, was confirmed by the Senate on January 31. Chao will likely be involved in helping the GOP develop an infrastructure proposal. Chao is the wife of Senate Majority Leader Mitch McConnell (R-KY), and served eight years as Deputy Secretary of Transportation during the George H.W. Bush Administration. Although Trump promised a $1 trillion infrastructure bill in his first 100 days in office, the timing of a plan has been delayed by a full Republican agenda. Moreover, Republican leaders have not yet decided how to pay for the investment nor what types of infrastructure will be included. On the campaign trail, Trump claimed that the bill will be revenue -neutral, use public - private partnerships as a pay -for, and provide tax incentives to leverage private investments, which will be difficult to deliver. This would only work for money -making infrastructure projects, which includes airports and toll roads, but excludes many important modes. The President has also considered creating a national infrastructure bank. Democratic leaders Nancy Pelosi (D-CA) and Chuck Schumer (D-NY) have said that an infrastructure package may be an area where Democrats can work with the new Administration. 0 Meanwhile, on January 24, Senate Democrats unveiled a plan for $1 trillion federal infrastructure spending over 10 years. Democrats believe that the measure should spur economic growth and create jobs, but avoid taking money away [from other programs]. The proposal includes: Reconstruct Roads & Bridges $100 Improve Airports $30 Billion Billion Revitalize Main Street $100 Address Ports & Waterways $10 Billion Billion Expand TIGER $10 Build Resilient Communities $25 Billion Billion Rehabilitate Water and Sewer $110 21st Century Energy Infrastructure $100 Billion Billion Modernize Rail Infrastructure $50 Expand Broadband $20 Billion Billion Repair & Expand Transit $130 Invest in Public Lands & Tribal $20 Billion Infrastructure Billion Vital Infrastructure Program $200 Modernize VA Hospitals $10 Billion Billion Rebuild Public Schools $75 Provide Innovative Financing Tools $10 Billion Billion We will continue to keep the City updated as developments occur. 9 1 Mal 19E-20 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: COMMUNITY DEVELOPMENT BLOCK GRANT PUBLIC SERVICE FUNDING AVAILABILITY 2017-2018 {STRATEGIC PLAN NO. 5, 41 CITY ANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: 115-1-0T07W ❑ As Recommended El As Amended M Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER The City of Santa Ana receives an annual allocation of Community Development Block Grant (CDBG) funds from the United States Department of Housing and Urban Development (HUD) to improve low to moderate -income neighborhoods, eliminate blight and create a more stable economic base. These funds may be used for a diverse range of programs including housing, street improvements, park and public facilities improvements, economic development, code enforcement and public services. The City's estimated CDBG allocation for Fiscal Year (FY) 2017-18 is $5,127,675, and reflects an estimated three percent reduction from the current year allocation. A maximum of 15 percent of CDBG funding, the equivalent of $769,151, may be used for public services. In previous fiscal years, CDBG public service funding was provided to both nonprofit and City administered public service programs. At the February 7, 2017 City Council Meeting, Staff was directed to provide a greater portion of CDBG public service funds to nonprofits. As such, Staff will be allocating the entire 15 percent CDBG allocation for public services to nonprofits for FY 2017-18. During the 2017-18 budget development process, City departments, including Police and Parks Recreation and Community Services Agency, will seek General Fund assistance to fund City administered public services that are currently funded with CDBG. These public services include the Police Athletic and Activities League, Library Tutors, and Senior Meals programs. As CDBG funds are removed from the City administered public service programs, CDBG may not be used to supplant City funding in the following fiscal year. 19F-1 CDBG Funding Availability FY 2017-18 February 21, 2017 Page 2 The following is a funding summary of current CDBG City administered public service programs: City Department Public Service Program Approved CDBG FY 16-17 PD Police Athletics & Activities League 196,745 PRCSA Library Tutors 190,172 PRCSA Senior Meals 75,290 TOTAL $ 462,207 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). FISCAL IMPACT There is no fiscal impact associated with this action. Robert C. Cortez Deputy City Manager City Manager's Office 19F-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: AVAILABLE FUNDS FOR AFFORDABLE HOUSING DEVELOPMENT PROJECTS (STRATEGIC PLAN NO. 5,3) CItY MANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: El As Recommended ❑ As Amended 0 Ordinance on 15' Reading © Ordinance on 2A Reading d Implementing Resolution [] Set Public Hearing For v CONTINUED TO FILE NUMBER The City of Santa Ana and Housing Authority acting as the Housing Successor Agency manages multiple sources of local, state and federal funds to promote and facilitate the development of affordable housing. These funding sources are used for the acquisition, rehabilitation, and new construction of affordable housing units that carry long-term affordability requirements and restrictions. Funding is loaned to developers in the form of low interest bearing gap financing payable to the City or Housing Authority via residual receipts over a 55-year period. Developers may utilize this gap financing to compete for 9% or request 4% Low Income Housing Tax Credits from the State of California. Since 2009, the City of Santa Ana has provided funding for 16 affordable housing projects which has facilitated the development of 550 affordable units for Santa Ana's community. A complete list of multi -family affordable housing development projects since 2009 is provided as Exhibit 1. The affordable housing development funds include Housing Successor Agency, Inclusionary Housing, HOME Investment Partnerships Program and Community Development Block Grant funds. A detailed explanation of the restrictions and uses of each type of fund can be found in Exhibit 2. Following is a general description of each of the funds available for affordable housing development as of February 14, 2017. Available balances include City Council approved commitments and proposed commitments. A detailed account of available funds for affordable housing development projects is provided in Exhibit 3. 19G-1 Available Funds for Affordable Housing Development Projects February 21, 2017 Page 2 • Housing Successor Agency (Low & Moderate Income Housing Asset Fund): These funds are carried over and collected under the former Redevelopment Agency which was dissolved in 2012. Funding may be deposited into this fund from the sale of Housing Successor Agency land, principal and interest repayments from the current loan portfolio, and available funds deposited as Recognized Obligation Payment Schedule (ROPS) payments for enforceable obligations as approved by the Department of Finance. Available funds for affordable housing development projects: $7.2M • Inclusionary Housing: These funds are paid by developers when they opt -out of developing affordable housing on -site on their projects and instead pay an in -lieu fee required by the City's Housing Opportunity Ordinance. Available funds for affordable housing development projects: $3.7M • HOME Investment Partnerships Program (HOME): These funds are Federal funds that the City receives from the U.S. Department of Housing and Urban Development (HUD) on an annual basis as a Federal entitlement jurisdiction. Non-profit Community Housing Development Organizations (CHDO's) may utilize 15% of the annual HOME Program allocation. Allocation of funds must go through a competitive Request for Proposals (RFP) process. Available funds for affordable housing development projects: $338,351 • Community Development Block Grant (CDBG): These are Federal funds that the City receives from HUD on an annual basis as a Federal entitlement jurisdiction. Funding may only be used for acquisition and rehabilitation projects (no new construction). Allocation of funds must go through a competitive RFP process. Available funds for affordable housing development projects: $640,000 The available funds for affordable housing development projects may be awarded to developers by the City and/or Housing Authority via City Council action to address the need for more affordable housing units. 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). 19G-2 Available Funds for Affordable Housing Development Projects February 21, 2017 Page 3 FISCAL IMPACT There is no fiscal impact associated with this action. - C.Robert C. Cortez Deputy City Manager " City Manager's Office Exhibits: 1. List of Multi -Family Affordable Housing 2. Restrictions and Uses of Funds 3. Available Funds for Affordable Housing Development Projects Since 2009 Development Projects 19G-3 19G-4 Exhibit 1 List of Multi -Family Affordable Housing Development Projects Since 2009 City of Santa Ana Updated February 15, 2017 # ' Project Name. Loan Date Total Affordable Units l6i City/Agency loan Value of Agency Provided Land' Housing Authority Project -Based Vouchers Value Total City/Agency Loan and Project - o Based Vouchers City/Agency Funds Per Affordable Unit 1 1410 Durant 2009 14 $ 1,800,000 $ 1,800,000 $ 128,571 2 702 N Lacy 2009 26 $ 2,886,860 $ 2,886,860 $ 111,033 3 702 S. Raitt 2009 8 $ 1,495,662 $ 1,495,662 $ 186,958 4 Terraces at Santiago 2010/2011 35 $ 7,043,497 $ 7,043,497 $ 201,243 5 435-437 S. Birch 2011 5 $ 803,667 $ 350,000 $ 1,153,667 $ 230,733 6 217-219 S. Birch 2011 5 $ 803,667 $ 355,000 $ 1,158,667 $ 231,733 7 2034-2038 Bush 2011 5 $ 803,667 $ 350,000 $ 1,153,667 $ 230,733 8 326 Garnsey Street 2011 25 _$ 4,291,188 $ 4,291,188 $ 171,648 9 Station District - R1 2011 74 $ 10,800,000 $ 10,800,000 $ 145,946 10 IStation District- R2 2012 39 $ 4,770,000 $ 4,000,000 $ 8,770,000 $ 224,972 11 Vista Del Rio 2012 40 $ 2,069,000 $ 2,900,000 $ 303,000 $ 5,272,000 $ 131,800 12 Depot at Santiago 2013 69 $ 3,000,000 $ 710,460 $ 3,710,460 $ 53,775 13 940 Minnie 2014 8 $ 1,422,000 $ 1,422,000 $ 177,750 14 815 N.Harbor 2014/2015 69 $ 3,260,000 $ 719,050 $ 3,979,050 $ 57,667 15 Santa Ana Arts Collective 2016 57 $ 4,635,000 $ 4,635,000 $ 81,316 16 The Orchard 2016 71 $ 1,199,869 $ 7,895,194 $ 9,095,063 $ 128,099 Total 550 (1) Excludes Manager's Unit (2) Based on Value of Tax Exempt Permanent Loan for Vouchers 19G-5 19G-6 EXHIBIT 2 RESTRICTIONS AND USES OF AFFORDABLE HOUSING FUNDS Housina Successor Aaencv (Housing Authorit The Housing Authority assumed the role of the Housing Successor Agency to the former Redevelopment Agency when the Redevelopment Agency was dissolved in February 2012, which includes the funds and properties in the Low and Moderate Income Housing Asset Fund. Funds must be used to develop, acquire, rehabilitate, acquire long-term affordability covenants for, or preserve lower income housing (at or below 80% of the area median income (AMI)). At least 30% of the funds must be spent on extremely low income housing (at or below 30% AMI) and no more than 20% of the funds may be spent on housing for households earning between 60-80% AMI. These requirements must be met over a 5-year period. If an agency fails to meet these requirements in any 5-year period, at least 50% of the funds in each fiscal year must be spent for extremely low income households until the extremely low income target is met. If the agency exceeds the expenditure limits for households earning between 60-80% AMI, the agency is prohibited from spending funds on housing in that income range until the limit is met. Units developed with these funds have the following affordability requirements: 55-years for rental units and 45-years for for-sale/ownership units. Rent, affordable sales price and income limits are determined by methodologies set by the State of California. If the Agency has fulfilled all replacement, affordable housing production, and monitoring, database compilation and web site publication requirements, it may spend up to $250,000 per fiscal year on homeless prevention and rapid rehousing services. Inclusionary Housing Funds The City's Inclusionary Housing Ordinance prescribes the use of the monies deposited into the Inclusionary Housing Fund, which are to "be used to increase and improve the supply of housing affordable to Moderate, Low, Very Low and Extremely Low Income Households in the City'. Funds shall be used in accordance with the City's Housing Element, Consolidated Plan, or subsequent plan adopted by the City Council to construct, rehabilitate, or subsidize affordable housing or assist other government entities, private organizations, or individuals to do so. The Inclusionary Housing Fund may be used for the benefit of both rental and owner - occupied housing. Eligible uses include, but are not limited to, assistance to housing 19G-7 development corporations, equity participation loans, grants, pre -home ownership co - investment, pre -development loan funds, participation leases, or other public -private partnership arrangements. HOME Investment Partnerships Program (HOME) Funds HOME eligible program activities include: (1) Homeowner Rehabilitation; (2) Homebuyer Activities; (3) Rental Housing; and (4) Tenant -Based Rental Assistance (TBRA). For affordable housing development, the City of Santa Ana provides HOME funds as a loan to affordable housing developers, with a 3% interest rate for a 55-year term repaid by residual receipt payments. HOME funds can be used for the following costs: new construction projects; rehabilitation; reconstruction; conversion; site improvements; acquisition of property; acquisition of vacant land; demolition; relocation costs; refinancing; capitalization of project reserves; and project -related soft costs. Prohibited activities and costs under the HOME program include: project reserve accounts; TBRA for certain purposes; match for other federal programs; public housing; acquisition of city -owned property; payment of delinquent taxes, fees, or charges; and project -based rental assistance. Requirements for HOME -funded projects include, but are not limited, to the following requirements. HOME funds must be used for households at or below 80% AMI with HOME rents determined annually by U.S. Department of Housing and Urban Development (HUD). HOME -funded properties must meet certain minimum property standards, which are outlined in the City's Property Standards. The HOME affordability period is 5 to 20 years depending on the HOME assistance; however, the City's affordability period is 55-years for all rental projects. The City monitors these units during the affordability period for compliance through on -site physical inspections, review of tenant files and programmatic requirements, and annual reports. The City is required to meet prescribed timeliness requirements to commit within 2-years and expend within 5-years of receiving the HOME funds. Community Development Block Grant (CDBG) Funds CDBG eligible program activities related to housing include: (1) homeowner assistance; (2) rental rehabilitation activities; (3) homeowner rehabilitation activities; (4) housing services in connection with the HOME Program; and (5) acquisition of existing housing. Prohibited activities and costs under the CDBG program, as related to affordable housing development, includes: operating and maintenance expenses, and new housing construction projects. 19G-8 For multi -family rental housing, at least 51 % of the units must be occupied by low- or moderate -income households. Qualified households must have incomes at or below 80% of the AMI. All CDBG-assisted rental units must bring the properties up to local codes and standards. The City monitors rental units through on -site physical inspections, review of tenant files and programmatic requirements, and annual reports. 19G-9 19G-10 Exhibit 3 Available Funds for Affordable Housing Development Projects As of February 14, 2017 Housing Successor Agency (Housing Authority) $10,378,674 Cash on Hand $4,218,690 Deposit of ROPS 2nd Installment for FY 16117 ($6,195,000) Proposed AMCAL Housing Successor Agency Loan Agreement (2/21 City Council) ($789,853) Reconciling amount (ROPS Projects) ($338,564) Habitat for Humanity Disposition and Development Agreement TBD Administrative Costs Allowance 2 $7,273,946 Available Funds Inclusionary Housing Funds $5,877,690 Cash on Hand $2,600,000 Anticipated HOO funds from Heritage Village OC LLC in 2017 ($2,600,000) Proposed AMCAL Conditional Inclusionary Housing Funds Loan Agreement 4 ($2,061,503) Santa Ana Arts Collective Pre -Commitment Loan & Associated Project Costs ($36,896) Administrative Costs Allowance (CDA/PBA) $3,779,291 Available Funds HOME Program $2,931,129 Funds to Drawdown ($2,260,000) Santa Ana Arts Collective Pre -Commitment Loan ($332,778) Community Housing Development Organizations (CHDO) Set -Aside $338,351 Available Funds to Drawdown CDBG Program (Acquisition/Rehabilitation Projects Only) $1,140,000 Funds to Drawdown ($500,000) Santa Ana Arts Collective Pre -Commitment Loan $640,000 Available Funds to Drawdown ' Educational Revenue Augmentation Fund (ERAF) / Supplemental Educational Revenue Augmentation Fund (SERAF) repayment approved by Department of Finance via the Recognized Obligation Payment Schedule (HOPS). Future repayment schedule of remaining loan balance to be determined pursuant to Dissolution Laws. ° The Housing Successor Agency relies on available cash to fund the monitoring and compliance functions related to the former Redevelopment Agency's housing loans. s Housing Opportunity Ordinance (HOO) ° In -lieu fees anticipated to be received from the Heritage Village OC in FY 2016/17. Pre -loan amount is$1,876,000. The $332,778 includes funds correctly available as noted In the February 7, 2017 City Council Agenda item 250. An additional $171,771.80 is estimated in future funding. ° All unencumbered funds at fiscal year end are expected to be rolled over to the Unappropriated Balance for CDBG Capital Projects in FY 17/18. 19G-11 19G-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: AMENDMENT NO. 1 TO COOPERATIVE AGREEMENT WITH THE CITY OF COSTA MESA FOR THE SANTA ANA DELHI DIVERSION PROJECT (NONGENERAL FUND) (PROJECT NO. 16-6467) {STRATEGIC PLAN NOOi6, 1G) 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 the City Manager and Clerk of the Council to execute Amendment No. 1 to Cooperative Agreement with the City of Costa Mesa, authorizing Costa Mesa's $600,000 contribution to the Santa Ana Delhi Diversion Channel project to be utilized for constructing an underground segment of the Santa Ana Delhi Diversion Project, located on Bristol Street from Baker Street to Newport Boulevard. 2. Approve an Appropriation Adjustment to reverse the appropriated anticipated revenues from the City of Costa Mesa, in the Federal Clean Water Protection Enterprise Fund, in the amount of $600,000. DISCUSSION The Santa Ana -Delhi Channel Diversion Project (Delhi Project) is a regional collaboration between the County of Orange, the Orange County Flood Control District, and the Cities of Santa Ana, Costa Mesa, Newport Beach (Funding Partners). The City of Santa Ana is functioning as the lead agency. The goal of the Delhi Project is to improve the water quality in Newport Bay and increase regional groundwater supplies. Completion of the Delhi Project will also help Santa Ana meet federal storm water program requirements mandated by the California State Water Resources Control Board. The Delhi Project will install a forced main in Costa Mesa to divert low -flow storm water to the Orange County Sanitation District treatment plant. A portion of the forced main falls within the limits of a current Costa Mesa Project. To take advantage of the cost savings of building the projects concurrently, Council approved a cooperative agreement between Santa Ana and Costa Mesa to include this work in the Costa Mesa Project with funding provided by the Delhi Project (Exhibit 1). The cooperative agreement authorized Costa Mesa to build the underground portion of the Delhi Project within Costa Mesa's Bristol Street Median for $1,100,000 (Delhi Project/Costa Mesa Segment). This project cost was based on an engineer's estimate prior to construction bids. However, after receiving the construction bids, the cost to construct Delhi Project/Costa Mesa Segment is actually $1,700,000. The funding plan for the Delhi Project required Costa Mesa to forward its $600,000 share of the project funding by January 31, 2017. However, since the previous expenditure authorization for the Delhi Project/Costa Mesa Segment ($1,100,000) and Costa Mesa's Delhi Project fair share portion ($600,000) 20A-1 Amendment No. 1 - Cooperative Agreement with Costa Mesa for Delhi Diversion Project February 21, 2017 Page 2 are sufficient to cover the construction bid of $1,700,000, Santa Ana staff recommends executing Amendment No. 1 to the Cooperative Agreement (Exhibit 2), authorizing Costa Mesa to use its share of the Delhi Project funding to directly cover the revised construction costs. The amendment also confirms that Costa Mesa will provide Santa Ana with the construction and accounting records for the Delhi/Costa Mesa Segment. Additionally, any unspent funds and/or interest earnings will be reimbursed to Santa Ana to replenish the Delhi Project fund. This recommendation is supported by the Delhi Project Funding Partners. 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 No environment impact is associated with this action. FISCAL IMPACT The cooperative agreement between Santa Ana and Costa Mesa, approved by Council on April 19, 2016, authorized an advance of $1,100,000 from the Delhi Project funds for construction of the Delhi/Costa Mesa Segment. Initially, this advance was to be comprised solely of Santa Ana's share of the Delhi Project funding. However, now that the Delhi Project Cooperative Agreement is in place, the allocation will come from all of the Funding Partners, as identified in the revised Delhi Channel Diversion Project Estimated Spending Plan (Exhibit 3) and summarized as follows: City of Santa Ana 05717640-62300 402,331 OC Flood Control District & County of Orange 05717660-66220 338,773 City of Newport Beach 05717660-66220 317,546 Irvine Ranch Water District 05717660-66220 41,350 TOTAL $1,100,000 The Appropriation Adjustment that was approved as part of the April 19, 2016, Council action will be amended to reverse the anticipated $600,000 in revenue from the City of Costa Mesa. The new Appropriation Adjustment that is being requested will reverse $600,000 from the Expense Reimbursement from City of Costa Mesa revenue account (No. 05717002-57013) and unappropriate the same amount from the Federal Clean Water Protection Enterprise expense account (No. 05717640-66220). The $500,000 originally appropriated from Federal Clean Water Protection Enterprise funds is now programmed for expenditure on the Delhi Project in FY 2017-18. 20A-2 Amendment No. 1 February21, 2017 Page 3 - Cooperative Agreement with Costa Mesa for Delhi Diversion Project to = FrO Mousavipour V Executive Director Public Works Agency FM/EWG/TC APPPPVED AS TO FUNDS & ACCOUNTS: a Francis& Gutierrez Executive Director I'G% Finance & Management Services Agency Exhibit: 1. Cooperative Agreement with City of Costa Mesa dated May 18, 2016 2. Amendment No. 1 to Cooperative Agreement with City of Costa Mesa 3. Delhi Channel Diversion Project Estimated Spending Plan (Revised) 20A-3 20A-4 A-2016.092 COOPERATIVE AGREEMLNT BETWEEN THE CITY OF SANTA ANA AND THE CITY OF COSTA MESA FOR THE CONSTRUCTION OF THE SANTA ANA DELHI DIVERSION FORCED SEWER MAIN UNDER BRISTOL STREET FROM BAKER TO NEWPORT BEACH BOULVARD This cooperative agreement ("Agreement") is made and entered into this � day of --WW--�4-- 2016, by and between the CITY OF COSTA MESA, a municipal eorporatton ("COSTA MESA"), and the CITY OF SANTA ANA, a municipal corporation ("SANTA ANA"). RECITALS; A. WHEREAS, the City of Sama Ana, Orange County Flood Control District, the County of Orange, the City of Newport Beach, the City of Costa Mesa, and the Irvine Ranch Water District are all parties to a separate agreement for the construction, maintenance, and operation of the Santa Ana Delhi -Diversion Channel Project ("Diversion Channel Project"); which is a collaborative effort to address regional water quality issues, and B. WHEREAS, one aspect of the Diversion Channel Project's proposed plan is to install, operate, and maintain forced sewer main pipelines within public street right-of-way of COSTA MESA, and C. WHEREAS, COSTA MESA agreed to contribute to the Diversion Channel Project a lump sum amount of $600,000, and D. WHEREAS, in a separate and different project to begin before construction of the Diversion Channel Project, COSTA MESA will 'hire its own contractor to perform certain work in the median on .Bristol Street within the city of COSTA MESA ("Bristol Street Median Project"), and E, WHEREAS, to benefit the Diversion Channel Project in terms of time and cost savings, COSTA MESA is agreeable to having its contractor for the Bristol Street Median Project, perform that portion of the Diversion Channel Project which calls for forced sewer main pipelines to be installed within Bristol. Street between Baker Street to Newport Boulevard; as shown in Exhibit A, and F. WHEREAS, COSTA MESA desires, therefore, that COSTA MESA'S lump sum financial obligation to the Diversion Channel Project be offset by the cost of work performed by its contractor on the Bristol. Street Median Project related to installing the forced sewer nxain pipeline, and G. WHEREAS, SANTA ANA is agreeable to advancing to COSTA MESA the fiends required to cover the costs incurred by COSTA MESA to pay its contractor on the Bristol Street M'edian?rojoct to install the forced sewer main,pip.eline ("Advanced Expended Funds"); Pate I of 12 EXHIBIT 1 20A-5 A. 1 as specified, in Exhibit B; and H. WHEREAS; COSTA MESA. shall reimburse SANTA ANA without interest the Advanced Expended Funds on or before January 31, 2017, and 1. WHEREAS, the Diversion Channel Project is being designed by SANTA ANA., including that portion to be constructed and installed by COSTA MESA'S contractor on the Bristol Street Median Project, as drown in Exhibit "A,", attached hereto and, incorporated by -this refer®n06; and J. WHEREAS, for purposes of regulatory environinental review, SANTA ANA is the lead agency on the Diversion Channel Project and COSTA MESA is the lead agency on the Bristol Street Median Proj cot, and K. WHEREAS, that portion of the Diversion Charnel Project that is being constructed and installed by COSTA MESA'S contractor as part of the Bristol Street Median Project is declared by SANTA ANA to be categorically exempt under Section 15301 of the California Environmental Quality Act (CEQA) Guidelines — Class 1(e), (Existing Highways and Streets, Sidewalks, Gutters, Bicycle and Pedestrian Trails, and similar Facilities). NOW, THEREFORE, the parties agree as follows; A. COSTA MESA Rights and Duties; I. COSTA MESA shall be the lead agency for construction of the Bristol Median Project and shall incorporate into said project, construction of that portion of the Diversion Channel Project to be constructed and installed by COSTA MESA'S contractor on the Bristol Street Median Project, as shown in Exhibit "A" ("Forced Sewer Main Pipeline") COSTA MESA shall provide all construction management. COSTA MESA shall be solely responsible for the administration and performance of the contract awarded to the contractor for the construction of the Bristol Median Project and Forced Sewer Main Pipeline. COSTA MESA shall use the Advanced Expended Funds, in the amount not to exceed $I,10o,000.00, for the sole purpose of, paying for construction and construction management costs associated with installation of the Forced Sewer Main Pipeline, Na work on the Forced Sewer Main Pipeline shall commence until the Santa Ana-DeN Channel Diversion Project Agreement DI5-013 has been approved by all of the Funding Partners, within that agreement, In the event that the Agreement D 15-13 is not approved by all of the Funding Partners or, after approval it is later determined that the Diversion Channel will not go forward for any reason, COSTA MESA shall reimburse SANTA ANA flit) $1,100,000.00 within forty five (45) calendar days of said determination; provided however, if such a determination is made after COSTA MESA's contractor has already completed work on the Forced Sewer Main Pipeline, then COSTA MESA shall withhold from reimbursement the actual costs of Page 2 of 12 20A-6 construction/installation of the Forced Sewer Maia Pipeline; and if such determination is made before construction begins, but after COSTA MESA'S contractor bid for and was awarded the contract, then COSTA MESA shall withhold from reimbursement the costs incurred by its contractor to secure the award of contract for the Forced Sewer Main Pipeline work that will not be going forward and for related claims by the contractor, 2. COSTA MESA shall reimburse SANTA ANA, without interest, the COSTA MESA's portion of the Advanced Expended Funds of $600,000 on or before January 31, 2017. Change orders associated with the Forced Sewer Main Pipeline must receive the written approval of the City Engineer of SANTA ANA prior to implementation, which approval shall not be unreasonably withhold. SANTA ANA shall have a minimum of five (5) working days to review and approve change orders. 4, COSTA 'MESA shall provide SANTA ANA final record drawings for the Forced Sewer Main Pipeline portion of the Bristol Median Project within sixty (60) days of the completion and acceptance of construction. B, SANTA ANA Riehts and Duties: 1, SANTA ANA shall have the right to enter and inspect the Forced Sewer Main Pipeline and the Bristol Median Project at all times for the purposes of overseeing COSTA MESA; lead agency 'functions and the work being performed by COSTA MESA's contractor, provided however, SANTA ANA shall indemnify, defend, and hold harmless COSTA MESA from any and all claims of damages or injury to SANTA ANA representatives while on the project premises 2. SANTA ANA shall transfer and give to COSTA MESA within thirty (30) days of the effective date of this Agreement, the Advanced Expended Funds totaling Ono Million and One Hundred Thousand Dollars ($1,100,000,00). 3. SANTA ANA shall review all requests for progress payments for the Formed Sewer Main Pipeline; and shall approve or disapprove said request with five (5) business days of receipt of same by SANTA ANA, SANTA ANA shall timely provide necessary information and/or documents to substantiate its disapproval of a progress payment request. C. JOINT RIGHTS AND PUTIES': 1. Responsibilities, Obligations and Mutual Indemnity; a, GOVERNING LAW & VENUE , This Agreement shall, be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the solo and exclusive venue shall be a court Page 3 of 12 20A-7 K of competent jurisdiction located in Orange County, Califon-da, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding the provisions of Code of Civil Procedure Section 394, The Parties agree to waive any and all rights to request that an action be transferred for trial to another County, b. NOTICES - Any notice or other written instrument required or permitted by this Agreement to be, given, to any Parley shall be deemed received :When personally scrved.or transmitted by fsesinnile, or, forty-eight (48) hours alter being deposited in the US, Mail, postage prepaid, First Class or certified, and addressed as follows: City of Santa Anna City of Costa Mesa one Chesanek Baltazar Mojia principal Civil. Engineer. Actin City Engineer 20 Civic Center Plaza, M-22 P,O. Box 1988 Santa Ana, CA 92702 Public Services 77 Pair Drive, 4th Floor Costa, Mesa, CA. 92626 c. ATTORNEYS' FEES - In the event suit is brought by any Party to enforce the terms and provisions of this Agreement, or to secure die performance hereof, each Party shall bear its own attorneys' tees. FORCE MAJEURE - Except for the payment of money, no Party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, Acts of God, strike or labor dispute, war or other violence, acts of third parties not within. either Party's reasonable control or any law, order or requirement of any govermnental agency or authority. d: WAIVER - A waiver of a breach of the covenants, conditions or obligations under this Agreement by either Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement. e: MODIFICATION — Any alterations, changes or modifications to this Agreement shall be in the form of a written amendment, which shall be signed by each Party. E ASSIGNMENT - No Party shall assign its performance of this Agreement, nor any part thereof, without the prior written consent of the non -assigning Party, Any assignment made in violation of this section shall be null and void. g, INDEMNIFICATION BY SANTA ANA: SANTA ANA shall indemnify, defend and hold COSTA MESA, its officers, agents and employees, harmless from any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen as a result of any acts performed by SANTA ANA, its officers, agents, or employees, with respect to the Project, save and except to the extent such expense, liability or claim is proximately Page 4 of 12 20A-8 caused in whole or in part by any negligence of the SANTA ANA, or by their respective officers, agents or employees, or by any act or omission for which SANTA ANA, or their respective officers, agents or employees are liable without fault. h. INDEMNIFICATION BY COSTA MESA: COSTA MESA shall indemnify, defend and hold SANTA ANA, its officers, agents' and employees, harmless from any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen as a result of any acts performed by COSTA MESA, its officers, agents, or employees, with respect to the Project,save and except to the extent such expense, liability or claim is proximately caused in whole or in pant by any negligence of, the COSTA MESA, or by their respective officers, agents or employees, or by any act or onussion for which COSTA MESA, or their respective officers, agents or employees are liable without fault, TERMINATION - Either Party may terminate this Agreement upon the other Party's failure to, comply with any term or condition of this Agreement, as long as the terminating party is not in default of any term or condition of this Agreement, To initiate termination, the terminating party must provide the defaulting party with a written "Notice of Termination" stating its intent to terminate and describing all terms acid conditions with which the defaulting party has failed to comply. if the defaulting party has not remedied the default or not initiated good faith efforts to remedy its default within thirty (30) days after receiving the Notice of Termination, this Agreement will automatically terminate. This Agreement may also be terminated upon the written mutual consent of both parties. j. ENTIRE AGREEMENT - This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations between them pertaining to the subject rnatter thereof. Puiblic Works Agency RECOMMENDED FOR APPROVAL: Ernesto Munoz, P.E. Services Director Page 5 of 1.2 20A-9 caused in whole or in part by any negligence of the SANTA ANA, or by their respective officers, agents or employees, or by any act or omission for which SANTA ANA, or their respective officers, agents or employees are liable without fault, h. INDEMNIFICATION BY COSTA MESA; COSTA MESA shall indemnify, defend and hold SANTA ANA, its officers, agents and employees, harmless iiom any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen as a result of any acts performed by COSTA MESA, its officers, agents, or employees, with respect to the project, save and except to the extent such expense, liability or claim is proximately caused in whole or in part by any negligence of the COSTA MESA, or by their respective officers, agents or employees, or by any act or omission for which COSTA MESA, or their respective officers, agents or employees are liable without fault. TERMINATION - Either Party may terminate this Agreement upon the other Patty's failure to comply with any terns or condition of this Agreement, as long as the terminating party is not in default of any torn or condition of this Agreement, To initiate termination, the terminating party must provide the defaulting party with a written "Notice of Termination" stating its intent to terminate and describing all terms and conditions with which the defaulting party has failed to comply, If the defaulting party has not remedied the default or not initiated good faith efforts to remedy its default within thirty (30) days after reoelving the Notice of Termination, this Agreement will automatically terminate, This Agreement may also be terminated upon the written mutual consent of both parties, j, ENTIRE AGREEMENT - This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations between them pertaining to the subject matter thereof, RECOMMENDED FOR APPROVAL: Fred'MoLtsavipour Executive Director Public Works Agency James 0, Ross Interim Public Services Director Page 8 of 12 OW 20A-10 IN WITNESS WHEREOF, COSTA MESA has caused this agreement to be executed by its Mayor and attested by its Clerk, and SANTA ANA has caused this Agreement to be executed by its City Manager and attested by its Cleric, all therounto duly authorized by the COSTA MESA City Council and the SANTA ANA City Council, respectively, APPROVED AS TO FORM: Sonia R, Carvalho City Attorney t e andoval ief Assistant City Attorney APPROVED AS TO FORM: Tom Duarte City Attorney CITY OF SANTA ANA, a Municipal corporation of the State of California David "avazosV�j` City Manager ATTPS.T: Maria D. Huimr Clerk of the Council CITY Or, COSTA MESA, a California municipal corporation M Tom Hatch Chief Executive Officer ATTEST: Brenda Green City Clerk Page 6 of 12 20A-11 IN WITNESS WHEREOF, COSTA MESA has caused this agreement to be executed by its Mayor and attested by its Cleric, and SANTA ANA has caused this Agteennent to be executed by its City Manager and attested by its Cleric, all thereu nto duly authorized by the COSTA MESA City Council and the SANTA ANA City Council, respectively, APPROVED AS TO FORM: SoniaR. Carvalho City Attorney By: Jose Sandoval Chief Assistant City Attorney CITY OF SANTA ANA, aMunicipal corporation of the State of California By: David Cavazos City Manager ATTEST: Maria D, Huizar Cleric of the Council CITY OF COSTA MESA, a California. municipal corporation By, "" A AN Tom r toh Chief Executive Officer APPRWM F� 114I- ATTEST: `( // TomDuarte City Attorney City Clerk Page 6 of 12 20A-12 .. . .... . .. ..... . .. .... .. . ....... . . . ... .... ..... ..... ..... ... .. . ...... .. . . ...... .... . . .. ...... . ... ..... ...... R th Im 4 10 gG lixpAMR uWN r1r 20A-1 3 m I 20A-14 20A-1 5 E 8 g C b C M h I i lyl :.Y�FW xrry W 5@ p ov g I I I I � si" { I�Q 61 i 4 N I�Ln 44 4 IR y��• g b ,•,I,Sf ••. oPBr 'b W ✓ .K '"• 1 I 4 .._�.r..r... .�._...._,_. ,.,_..�.,......i ! ... r.� .,,,,Ire p w I I I .............. fpupl�l7?l @+�§�`gdgrnuago Wp gqW Up �A c9�eJ POAkl pop pop p©po11 '4 dP �a gp g� 93jtl�N pklfi�d pap%gk ppA @CP R• ° 00 g. Ng�� RkRRR g� Si rr k� S Sg S P � 1 q M M; B$ �1 'a4^P"� ll gr pf,S 8� GG6aR� 4 P 0. 6L X r q�i�P�•e"'1�n4" I I ��'(,[<iW'�{51' �i IV PROJECT ^�r�l I, U 1'R F�-ter 20A-16 ...... .... ...r ,..,,,•.�.._....._..._..... n "NHL sn, Ln ' N r !,$Jrrr r 1 � ' M , „rr it , nu L..... .... _.., ....____. ... ........... ..... .. .._ .r.. '� ��r"•"lil,ee•��a9� p ii r Iro Or E 2 l � n e 4 LH .IN LT . V 3+..� ..,,...,.... y m �� ����nl YOL 1�• nn e n u R P luAlN,lel ®OGI©O90Fp0q©�...,�,. •,.� ._.�._.......,,,., �„�•, ,,.. 9 pi Q RX � �� ilco a ia �a i PRO,r. 20A-17 EXHIBIT"B" ADVANCED .EXPENDED FUNTDS ANALYSIS ENGRNELin S XS"i':CCV XYL, Item Deseription Unit 12rtuntity 'Unit rrice Extended Coat 1 v 14" PVC 1?oraeMain LF 37716 .._ T $222 $837,828 2 5r'avity SeworMaahale LS I $.12,000_ $12,000 3 16" VC? O vity Sower Mahi LF 72 $150 $10,800 4� S4"TrunkMainManlialo I,S 1 $1,500 $1,500 couneodou 5" Pothola utilities Not Shown In EA 10 $3$0 $3,500 The Contract Documents 6* 14" PVC ,Siphon EA 10 $6,000 "'lot 14" PVC Forced Main Tnstalled _ 7* Deeper Than 1-Foot Bite Less LF 500 $50 $25,000 Than 3-Feat Engineers Estimate $950,628 Continganoy $149,372 Projeot Esdmated Total 1 $1,100,000 VUNDING 80URCY,, SUMMARY city or Santa Ana $ 500,000 City of costa Mona $ 600,Q00 _ Total Prejcot Ftxndin3 Advanood by City of Santa ,Ana $1,100,000 — 20A-18 AMENDMENT NO. I TO COOPERATIVE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND THE CITY OF COSTA MESA FOR THE CONSTRUCTION OF THE SANTA ANA DELHI DIVERSION FORCED SEWER MAIN UNDER BRISTOL STREET FROM BAKER TO NEWPORT BEACH BOULVARD This AMENDMENT NO, 1 ("Amendment No. 1") to the Cooperative Agreement between the City of Santa Ana and the City of Costa Mesa for the Construction of the Santa Ana Delhi Diversion Forced Sewer Main Under Bristol Street ("Agreement") is made and entered into this day of 2017, by and between the CITY OF COSTA MESA, a municipal corporation ("COSTA MESA"), and the CITY OF SANTA ANA, a municipal corporation ("SANTA ANA"). RECITALS: A. WHEREAS, pursuant to the Agreement, SANTA ANA, agreed to advance fiends to COSTA MESA in an amount not exceeding $1,100,000.00, which amount then represented the entire estimated cost to pay COSTA MESA's contractor on the Bristol Street Median Project to perform that portion of the Diversion Channel Project which calls for forced sewer main pipelines to be installed within Bristol Street between Baker Street to Newport Boulevard; and B. WHEREAS, pursuant to the Agreement, although SANTA ANA agreed to advance funds sufficient to pay the entire estimated cost to pay COSTA MESA's contractor, it was further agreed by the parties to the Agreement that COSTA MESA would reimburse SANTA ANA up to $600,000.00, which amount represented COSTA MESA's lump stun obligation on the Diversion Channel Project; and C. WHEREAS, in the time since the Agreement, SANTA ANA and COSTA MESA have learned and acknowledged that the entire estimated cost to perform the aforementioned Diversion Channel Project work within Bristol Street is actually an estimated $1,700,000.00; and D. WHEREAS, both SANTA ANA and COSTA MESA now desire that, rather than COSTA MESA, reimbursing SANTA ANA the $600,000.00, COSTA MESA will contribute that amount to the total actual estimated cost to perform the aforementioned Diversion Channel Project work within Bristol Street; and E. WHEREAS, to effectuate and memorialize this new arrangement, the Parties desire to amend the Agreement. Page 1 oF7 Exhibit 2 20A-19 NOW, THEREFORE, the Parties agree to amend the Agreement as follows: 1. Recital Letter "H" shall be removed in its entirety. 2. Paragraph 2 under the heading "COSTA MESA Rights and Duties" shall be removed in its entirety, 3. Except as expressly amended or modified by the terms of this Amendment No. 1, all terms of the Agreement shall remain in full force and effect, In the event of a conflict between the terms of this Amendment No. 1 and the Agreement, the terms of this Amendment No. 1 shall prevail and control. 4. The provisions of the Agreement, as amended, including the recitals, comprise all of the terms, conditions, agreements, and representations of the parties with respect to the subject matter hereof. 5. This Amendment No. 1 may be executed in one or more counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same instrument. 6. Each party represents and warrants that the representative signing this Amendment No. 1 on its behalf has all right and authority to bind and commit that party to the terms and conditions of this Amendment No. 1. IN WITNESS WHEREOF, COSTA MESA has caused this Amendment No. 1 to be executed by its City Manager and attested by its Clerk, and SANTA ANA has caused this Agreement to be executed by its City Manager and attested by its Cleric, all thereunto duly authorized by the COSTA MESA City Council and the SANTA ANA City Council, respectively. CITY OF SANTA ANA, a Municipal corporation of the State of California 1= CITY OF COSTA MESA, a Municipal corporation of the State of California M Gerardo Mouet Thomas Hatch M Acting City City Manager Manager Page 2 of 7 20A-20 ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney 1 n M. Funk Assistant City Attorney ATTEST: Brenda Green City Clerk APPROVED AS TO FORM: Thomas Duarte City Attorney Page 3 of 7 20A-21 RECOMMENDED FOR APPROVAL: Fred Mousavipour Executive Director Public Works A ;etacy RECOMMENDED FOR APPROVAL: Enlesto Munoz, P.E. Public Serviees Director Page 4 of 7 20A-22 SANTA ANA DELHI DIVERSION PROJECT Item Description unit Quantity Unit Price Amount 0 Project Administration (COSA) % 4% n/a $200K 1 Design Engineering LS 1.00 $300,000 $300k 2 Permits/ROW/Easements LS 1.00 $40,000 $40k 3 Environmental Report LS 1.00 $50,000 $50k 4 Survey LS 1.00 $60,000 $60k 5 Pothole LS 1.00 $20,000 $20k 6 Site Work LS I $950,000 7 Charnel Work LS 1.00 $1,101,000 ]$950k $1,010k 8 Equipment/Discharge each 7.00 $140000 $980k 9 14" PVC Sewer Farce Main LF 8,475.00 $240 $2,034k 10 Project Contingency % 20% n/a $1,000k 11 Construction Management (COSA) o /o 8% n/a $400k 12 Inspection & Testing (COSA) % 7% n/a $350k 13 Inspection (County) % 1.5% n/a $75k 14 SurveylConstruction Staking % 3% n/a $130k 15 Attorney Fees LS 1 $100,000 $100k 20A-24 SANTA ANA DELHI DIVERSION PROJECT 16 O&M (20yr) & Administration LS 1 $1,000,000 $1,000k 17 Golf Course Lost Revenue LS 1 $400,000 $400k TOTAL $9,100,000 Santa Ana Delhi Diversion Estimate Project Costs Breakdown EXHIBIT "B" 20A-25 20A-26 )} � \ ) § ° . `� )) .: !§ 1! / \\/ \\\\ \\ / / }}} \ ( ) 20A- 7 20A-28 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: ADULT AND DISLOCATED WORKER CAREER SERVICES PROVIDER {STRATEGIC PLAN NO 2,41 f F i , ,! � 11�►:mac RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on Ian Reading ❑ Ordinance on 2°d Reading ❑ Implementing Resolution E] Set Public Hearing For_,_ CONTINUED TO FILE NUMBER 1. Approve retention of the Adult and Dislocated Worker Career Services internally designating the City of Santa Ana as the administrative entity to be the provider of the services; 2. Authorize the Chair of the Workforce Development Board to sign the Request for Governor Approval; 3. Approve and Authorize the Mayor to sign the Request for Governor Approval to be the Adult and Dislocated Worker Career Services Provider as allowed under the Federal Workforce Innovation and Opportunity Act and Final Regulations. WORKFORCE DEVELOPMENT BOARD ACTION At its Regular Meeting of January 19, 2017, the Workforce Development Board recommended the approval of the Adult and Dislocated Worker Career Services Provider by a vote of 12:0 (Davila, Korthuis, Lewis, McGowan, Nishimoto, Perez, Piwnica, Ruiz, Smith absent). DISCUSSION The City of Santa Ana is the administrative entity that receives direct State federal funds under the Workforce Innovation and Opportunity Act (WIOA) which was signed into law July 2014 and went into effect July 1, 2015. The Workforce Development Board (WDB) is tasked with providing oversight in the implementation of WIOA and policy recommendation as it relates to workforce issues. The State provided direction, indicating that procurement of programs and services are to be completed in order to be in compliance with WIOA regulations. However, on June 30, 2016, the Department of Labor released the Final Regulations that allowed the WDB's to retain career services, which are defined as eligibility and case management to adult and dislocated workers. 21 A-1 Adult and Dislocated Worker Career Services Provider Career Services Provider February 21, 2017 Page 2 City staff under the Community Development Agency, Santa Ana WORK Center has been providing eligibility, enrollment, and case management services for Adult and Dislocated Workers. The City Council's approval of the Santa Ana WORK Center to retain the WIOA eligibility and other career services programs "in-house" would provide the continuum of the implementation of multiple time sensitive WIOA mandated activities and maintain positive service levels for WIOA customers. Otherwise, the City risks meeting State mandated performance measures and the loss of vital WIOA program funding to continue in providing positive "in-house" services to its customers. The WORK Center and the partners that comprise the one -stop operations have been very successful in the past in providing career services to job seekers in the community. WORK Center staff is very knowledgeable of the WIOA program requirements and have a proven history of meeting or exceeding performance goals. The table below illustrates the past five years of the Santa Ana WORK Center performance history: Santa Ana WORK Center Goal vs. Actual Performance Outcomes Adult and Dislocated Worker Career Services Programs Goal Actual Goal Actual Goal Actual Goal Actual Goal Actual 2011-12 2011-12 2012-13 2012-13 2013-14 2013-14 2014-16 2014-15 2015-16 2015-16 Adult Entered Employment 61.1% 59.6% 61.1% 72.0% 64.0% 77.6% 69.0% 76.6% 69.0% 78.0% Rate Employment 75.5% 78.7% 75.5% 79.9% 82.0% 78.9% 81.0% 84.9% 81.0% 90.0% Retention Rate Average Earnings $11,800 $11,348 $11,800 $10,811 $12,000 $12,164 $11,650 $11,200 $11,650 $13,491 Dislocated Worker Entered Employment 58.9% 61.8% 58.9% 60.2% 65.0% 70.8% 62.0% 73.3% 62.0% 81.0% Rate Employment Retention 83.0% 85.2% 83.0% 91.1% 85.0% 85.5% 89.0% 85.9% 89.0% 90.0% Rate Average Earnings $14,000 $16,128 $14,000 $15,166 $14,750 $14,376 $14,850 $14,370 $14,850 $17,565 21 A-2 Adult and Dislocated Worker Career Services Provider February21, 2017 Page 3 STRATEGIC PLAN ALIGNMENT Approval assists the City in meeting Goal #2, Objective #4 (Partner with groups and organization to promote education, senior services, job training and development for all Santa Ana residents). FISCAL IMPACT There is no fiscal impact associated with this action. City Manager's Office Exhibit: 1. State Application for Adult and Dislocated Services Provider 21 A-3 21 A-4 E {Aeparemeai ,!die" pi.,tnr�tar„ire. iVorkfelree aervrcee EXHIBIT 1 CC ALIFORNIA ,>Workforce Development Board Request for Approval to be America's Job Center of Californiasm Adult and Dislocated Worker Career Services Provider Locao worKrorce uevesopment Board Santa Ana Workforce Development Board Locai Workforce ueyeiopment Area Santa Ana 21 A-5 The Workforce Innovation and Opportunity Act (WIOA) allows Local Workforce Development Boards (Local Boards) to be an Adult and Dislocated Worker Career Services Provider with the agreement of the Chief Elected Official (CEO) and the Governor. This application will serve as the Local Board's or administrative entity's request for Governor Approval to be an Adult and Dislocated Worker Career Services Provider within a Local Workforce Development Area (Local Area) under WIOA. The application must be submitted to the California Workforce Development Board (State Board) by March 1, 2017, through one of the following methods: Mail California Workforce Development Board P.O. Box 826880 Sacramento, CA94280-0001 Overnight Mail/ California Workforce Development Board Hand Deliver 800 Capitol Mall, Suite 1022 Sacramento, CA 95814 If the State Board determines the request is incomplete, it will either be returned or held until the necessary documentation is submitted. Please contact your 8e�ional Advisor for technical assistance or questions related to completing and submitting this request. Santa Ana Workforce Development Board Name of Local Board 1000 E. Santa Ana Blvd. Suite 200 Mailing Address Santa Ana, CA 92701 City, State Zip Deborah Sanchez Contact Person 714-565-2621 Contact Person's Phone Number March 1, 2017 Date of Submission Page 2 of 8 21 A-6 Request for Approval to be Adult and Dislocated Worker Career Services Provider Local Chief Elected Official Statement A Local Board or administrative entity that seeks approval to be an Adult and Dislocated Worker Career Services Provider within an America's Job Center of California'm must provide a statement from the local CEO indicating his/her request as well as responses to the following questions. 1. What factors guided the Local Board's or administrative entity's decision to submit this application to be an Adult and Dislocated Worker Career Services Provider within the Local Area? The Santa Ana Workforce Development Board and the Mayor and city Councilmembers takes the strong position that its one stop office, the Santa Ana WORK Center is the best alternative to provide high quality Adult and Dislocated Worker services to its local residents and surrounding cities within the Orange County region. Before one -stop operations were written into the regulations under the Workforce Investment Act, City Council, its workforce board, and leadership at the local level from the Employment Development Department, Department of Rehabilitation, Santa Ana College, Social Services Agency, and the city's Economic Development Department strategized and developed the Santa Ana WORK Center. Thru co -location and staff working together to provide workforce and education services to the unemployed, underemployed, or new to the workforce services have been better coordinated with the collective customers better served. The WORK Center has been collaborating since 1996 and has passed or exceeded WIA performance goals while also passing financial and program review by EDD and DIG in addition to regular single audits by a third party audit firm. The WORK Center has created an organizational model that maximizes the resources of many partners —employers, education, government and non-profit organizations —in workforce planning and services to the community. The staff and administration of the WORK Center is very agile in meeting the needs of the community whether it is the clients utilizing the office to businesses needing assistance with recruiting or downsizing. From quickly adjusting its operational hours to meet our most recent recession, to developing an incumbent worker training program for a local medical device manufacturer, or coordinating and planning a regional youth job fair, to developing and hosting an bi-annual manufacturing day to help local manufacturers replenish its retiring workforce and promote the livable wages the manufacturing sector has to offer. The WORK Center and all the partners organizations that comprise the center have been worked hard to be innovative and attentive to the needs of the community. Page 3 of 8 21 A-7 2. How would participants be better served by the Local Board or administrative entity acting in this role rather than through the awarding of contracts? The Santa Ana WORK Center has a long track record of delivering strong performance results for its Adult and Dislocated Worker clients. But beyond landing participants good jobs, staff provides a depth of services and benefits that are often difficult to express in a numbers -driven system. The WORK Center and its partners offer an experienced and stable workforce that has years of knowledge in the workforce industry. Long term ties, knowledge and insight to the residents and business community it serves. The City has oversight and coordination of the WORK Center and is administered under the City's Economic Development Department. Staffs is cross trained on various local, state and federal tax incentives and are well versed on what is happening with businesses moving in, expanding or notified of plant closures or mass layoffs. The WORK Center is very much seen as an asset to the City's business retention and attraction efforts and is valued for ensuring the city has a trained and skilled workforce. Staff has developed strong working relationships with area business associations such as the Santa Ana Chamber of Commerce, the OC Business Corporation, Orange County Employer Management Association (OCEMA),the manufacturing trade group California Manufacture Technology Consulting (CMTC), the local Small Business Association (SBA) and the Small Business Development Corporation (SBDC). In addition to the staff networking connections with employers and their knowledge of the local labor market and economy is invaluable to the participants. With an outside contractor, there would be no Board administrative control over factors such as technical expertise and experience levels of staff, staff turnover, and administrative stability. An outside contractor will be focused almost exclusively on quantitative outcomes to meet contract obligations and to receive full payment. In addition, the WORK Center has developed a successful pre -employment component, such as career assessment and counseling that has been built into program design for the benefit of the participant. The intent is to match participant skill sets, aptitudes and interests to appropriate opportunities to maximize longer term results for the client and over all organizational performance. The WORK Center also has a long established record in working together with the Adult Education and ROP centers to augment clients training and basic skills training that would be difficult to duplicate for an outside vendor. And finally, the WORK Center is committed to serve its local employer customers at the highest level possible has benefited both job seeker and employers. Staff is committed to 100%employer satisfaction and responds to all local employer job openings and screen and Page 4 of 8 21 A-8 supply strongjob candidates to the prospective employer either through internal sources or through partner referrals. Local employers know that they will get fast, responsive results from the WORK Center staff. The Santa Ana Workforce Development Board have discussed possible procurement of Career Services and felt they would have little control over the level or responsiveness or commitment to employer services, concerned with actual delivery of client services as well as having them struggle with maintaining the reputation for delivering on its promises which in the long run could jeopardize the benefits to both participants and employers. 3. Describe the Basic and Individualized Career Services the Local Board or administrative entity will provide as well as their past experience providing these services. The following basic career services are provided at the WORK Center: Orientation Initial assessment Job search and placement assistance Job fair information Assistance with resumes Info on training providers Resume workshops Job search workshops Referrals to partner agencies Use of resource room Provision of LMI data UI and SSI general information Financial Aide Info Support Services Info On site employer recruitments Individualized career services provided at case management level include: Individual counseling Career guidance/planning Referrals to apprenticeships Skills assessment Interest and aptitude testing Referrals to training programs WEX/Transitional jobs Development of IEP Referrals to WIOA Title IB training Referral to job corps ABE/ESL classes Referrals to Adult Ed. On-the-job training Customized training The WORK Center has successfully provided all the services listed above and met or exceeded state performance goals since 1987 to present under federal workforce grants JTPA, WIA, and now known as WIOA. 4. Provide the Local Area's performance outcomes for each of the last three Program Years (PY 2013-14, 2014-15, 2015-16). Describe how these outcomes compare to other Local Areas in the Regional Planning Unit (RPU). For single Local Area RPUs, compare performance outcomes to other comparable Local Areas in the surrounding area. Page 5 of 8 21 A-9 The WORK Center and the partners that comprise the one -stop operations have been very successful in the past in providing career services to job seekers in the community. WORK Center staff is very knowledgeable of the WIOA program requirements and have a proven history of meeting or exceeding performance goals. The table below illustrates the past three years of the Santa Ana WORK Center performance history under the Workforce Investment Act: Santa Ana WORK Center Goal vs. Actual Performance Outcomes Adult and Dislocated Worker Career Services Programs Goal Actual Goal Actual Goal Actual 2013-14 2013-14 2014-15 2014.15 2015-16 2015.16 ADULT Entered Employment 64.0% 77.6% 69.0% 76.6% 69.0% 78.0% Rate Employment 82 0% 78.9% 81.0% 84.9% 81.0% 90.0% Retention Rate Average Earnings $12,000 $12,164 $11,650 $11,200 $11,650 $13,491 Dislocated Worker Entered Employment 65.0% 70.8% 62.0% 73.3% 62.0% 81.0% Rate Employment Retention 85.0% 85.5% 89.0% 85.9% 89.0% 90.0% Rate Average Earnings $14,750 $14,376 $14,850 $14,370 $14.850 $17,565 The WORK Center has met or exceeded the Adult and Dislocated Worker performance goals for the last three program years. The WORK Center's performance outcomes are very similar to the actual performance outcomes for the other two Local Areas in the Orange Regional Planning Unit. S. Provide evidence that the Local Board or administrative entity is qualified to provide Adult and Dislocated Worker Career Services, including testimonials that speak to the effectiveness and efficiency with which the Local Board or administrative entity has provided or can provide those services. Attach supporting documentation. The Santa Ana WORK Center has provided Adult and Dislocated Worker Career Services under the Job Training Partnership Act, the Workforce Investment Act, and currently under the Workforce Innovation and Opportunity Act for thirty years. During the past three years, the WORK Center has had no single audit findings nor a material program or fiscal monitoring finding conducted by the State Employment Development Division. Page 6 of 8 21A-10 (Staff is gathering testimonials from area businesses and participants that have accessed the services of the WORK Center — to include in the packet for submission). 6. Attach documentation (signed and dated letter) that the members of the Local Board and other relevant parties (e.g., Board of Supervisors) reviewed the information provided in the application and approved the request in a public meeting. See attached agendas and action items from the January 19, 2017 Santa Ana Workforce Development Board meeting and the February 21, 2017 Santa Ana City Council meeting. (Staff to attach when preparing packet for submission to the State) Page 7 of 8 21A-11 Signature Page By signing below, the local CEO and Local Board chair request approval from the Governor to be an Adult and Dislocated Worker Career Services Provider. Each party certifies that this application submission was reviewed and demonstrates that the Local Board or administrative entity will meet all the requirements as an Adult and Dislocated Worker Career Services Provider under WIOA law and regulations. Instructions — The Local Board chair and local CEO must sign and date this form. Include the original signatures with the request. Local Workforce Development Board Chair Signature Lee McMu Name Chair, Santa Ana Workforce Development Board Title Date Page 8 of 8 Local Chief Elected Official Signature Miguel Pulido Name Mayor, City of Santa Ana Title Date 21A-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21 , 2017 TITLE: AGREEMENT WITH CHAPMAN UNIVERSITY TO PROVIDE COMMUNITY ORIENTED POLICING SURVEY (STRATEGIC PLAN NO. 1, 1A) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: :••;• ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a one-year agreement with Chapman University, for the period of February 21, 2017 through February 20, 2018, for Professional Services to provide a Community Oriented Policing Survey in an amount not to exceed $30,600, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION With the adoption of the City of Santa Ana's Strategic Plan, the identification of a new Community Oriented Policing (COP) Plan was brought to the forefront. The Santa Ana Police Department has been a leader in COP since the 1970's and has embraced changing concepts and ideas to offer varying services to our residents. The City's outreach through the Strategic Planning initiative highlighted the need for the Department to re-examine COP for our community. At its core, COP must be based on a partnership with the community and understanding of community needs. The Police Department sought out research partners in 2015-2016 to perform an independent survey with several components agreed upon as keys to success. In the fall of 2015, Chapman University was identified as having the experience and capabilities to bring the survey process to a successful finalization. Chapman University's Earl Babbie Social Research Center was selected to perform the community survey. The Babbie Center has a history of utilizing qualitative and quantitative research methods to conduct studies that address critical social, behavioral, economic and environmental problems. The survey process entails 5 community based forums (four adult resident and one young adult focused engagements), focus group interviews, the design and dissemination of a COP survey, all in multi-lingual formats. The Babbie Center will ultimately return to the Police Department a 25A-1 Agreement with Chapman University February 21, 2017 Page 2 National Review of COP Practices, as well as final reports on the Community Forums, Focus Groups, and the results of the surveys. To date, all five community forums have been completed and data collation pertaining to the forums is ongoing. Based on unexpected delays, the project was not completed prior to the expiration of the original contract. Following the approval of this item, Chapman University and our resident partners will move forward with Focus Group interviews and the ultimate publication and distribution of the Community Oriented Policing Survey. 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 A (Develop and publish a community survey to measure the community's perceptions of community policing and police services provided by the Police Department). FISCAL IMPACT Funds in the amount of $15,000 are available in the FY 2016-17 Strategic Plan Projects Fund Contract Services account (no. 05214018 62300). In addition, funds in the amount of $15,600 are available in the FY 2016-17 Equitable Sharing - Treasury Contract Services account (16714455 62300). Carlos Rojas Chief of Police Santa Ana Police Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency Exhibit: 1. Agreement with Chapman University 25A-2 Exhibit ] PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 21st day of February, 2017 by and between Chapman University, a private educational institution, (hereinafter "University"), 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 University having special skill and knowledge in the field of Research and Academic Studies for purposes of conducting a community oriented policing study. B. University represents that University is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, University represents that it is knowledgeable in its field and that any services performed by University under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consultant 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 University shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and University 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 $30,600 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 February 20, 2018, 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. 25A-3 4. INDEPENDENT CONTRACTOR University 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 University performs the services which are the subject matter of this Agreement; however, the services .to be provided by University shall be provided in a manner consistent with all applicable standards and regulations governing such services. University 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 The University shall own, solely and exclusively, the copyright and all copyright rights to any written or otherwise copyrightable material delivered to City under this Agreement. University hereby grants a non-exclusive and perpetual license to City to copy, use, modify and reuse, 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 University under this Agreement ("Documents & Data"). University 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. University represents and warrants that University has the legal right to license any and all Documents & Data. University makes no such representation and warranty in regard to Documents & Data which were provided to University 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, University shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: Commercial General Liability Insurance, University 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 University'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. University shall supply City with a fully executed additional insured endorsement in substantially the form as required on Exhibit C upon execution of this Agreement. 25A-4 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, University, if University 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, University agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. If University 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 University pursuant to this section: (i) University 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) The parties shall agree that should any of the required policies be canceled, non -renewed, or coverage and/or limits reduced or materially altered before the expiration date thereof, the Insured, their Broker or the issuing company will provide 30 days written notice to the other party. Each COI shall specify that SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. If University 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 University's right to be paid for its time and materials expended prior to notification of termination. University 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 University agrees to and shall indemnify and hold harmless the City, its officers, agents, employees from liability -for claims and lawsuits arising out of the University's negligence or willful misconduct in its performance of this Agreement. Notwithstanding the foregoing, to the extent University's Services are subject to Civil Code Section 2782.8, the above indemnity shall 25A-5 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 University. 8. INTELLECTUAL PROPERTY INDEMNIFICATION University 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 University to the City pursuant to this Agreement. RECORDS University shall keep records and invoices in connection with the work to be performed under this Agreement. University 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 University under this Agreement. All such records and invoices shall be clearly identifiable. University 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. University 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 University under this Agreement. 10. CONFIDENTIALITY If University receives from the City information which due to the nature of such information is conspicuously marked by City as confidential and/or proprietary, University 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. Any oral Confidential Information which is provided to either party shall be treated as confidential if it shall be summarized in writing and the summary provided to the receiving party within thirty (30) days of its oral disclosure. 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 University disclosed in a publicly available source; (c) is in rightful possession of the University without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the University without reference to information disclosed by the City, 11. CONFLICT OF INTEREST CLAUSE University 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. 25A-6 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: and To University: Chief of Police City of Santa Ana 60 Civic Center Plaza (M-96) P,O, Box 1988 Santa Ana, California 92702 Fax 714- 245-8007 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647-6515 Director Office of Research and Sponsored Programs Chapman University One University Drive Orange, CA 92866 Fax 714-628-7374 With courtesy copies to: Harold Hewitt, Jr. EVP and COO Chapman University One University Drive Orange, CA 92866 Fax 714-997-6791 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, 25A-7 communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by 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 University, 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 University. 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 University 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 University, University 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 Universities retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, University shall be entitled to receive and the City shall pay University compensation for all non -cancellable commitments and services performed by University prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Police Chief may require University 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 University consents to the City's use thereof for such purposes as the City deems appropriate. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. DISCRIMINATION University shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited 25A-8 by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. University 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 University shall, throughout the term of this Agreement, maintain all necessary and applicable 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. University 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. [This section intentionally left blank] 25A-9 19. MISCELLANEOUS PROVISIONS Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b, All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written, ATTEST: MARIA D. HUIZAR Clerk of the Council R. CARV T6mhrd86go'sip' . Assistant City Attorney RECOMMENDED FOR APPROVAL: Carlos Rojas Chief of Police CITY OF SANTA ANA GERARDO MOUET Acting City Manager CHAPMAN UNIVERSITY HAROLD W. HEWITT, JR Executive Vice President and COO Tax ID# 95-1643992 25A-10 EXHIBIT A SCOPE OF SERVICES The scope of services is as follows: The Earl Babble Research Center (Babble Center), Chapman University, will perform a 4-phase Community Oriented Policing (COP) survey for the Santa Ana Police Department (SAPD) which will identify the current beliefs and desires of residents, business interests, and stakeholders of the City of Santa Ana regarding community policing. The research is expected to: a. Describe the public's understanding of what community policing is. b. Assess knowledge of and satisfaction with the SAPD's current COP strategies. c. Assess the community's support for further investment in COP. d. Suggest priorities for COP. Babble Center researchers will provide methodological and analytical expertise to the program in all stages of the project. The Babble Center will specifically: 1. Collaborate in developing data collection instruments for both online surveys and focus group interviews. 2. Oversee data collection and other day-to-day methodological aspects of the project. 3. Supervise data cleaning, management, and documentation. 4. Supervise and conduct data analyses. 5. Assist in subject recruiting procedures, monitor participant consent, and protect subject confidentiality by maintaining all participation records separately from SAPID personnel.. 6. Produce papers and reports related to the project. Project Overview and Specific Tasks The project will consist of four research phases, the first three of which are conducted in sequence: Phase 1 - Community Forums a. Four (4) community forums will be hold in each of the SAPD's geographic policing Districts: i. The SAPID shall provide all venues, ii. The SAPID shall provide all printed documents. iii. The SAPD will promote and conduct the community meeting. iv. Babbie Center researchers shall facilitate and document information/data exchanges and prepare a report identifying key themes emerging from the public discussion that will be further explored in focus group interviews. Babbie Center researchers will solicit volunteers for the focus group interviews at the community forums. b. Forums will: L Identify community expectations of COP in Santa Ana. ii. Identify residents, business owners and stakeholders interested in participating in the Focused/Personal Group Interview stage. To recruit subjects for interviews, participants in the community forum will be invited to fill out a combined consent and expression of interest form. The content of the consent form will be reviewed by the Institutional Review Board (IRB) 25A-11 of Chapman University. Forms will be collected by Babble Center staff, stored securely at the Babble Center, and will not be shared with SAPID personnel. ii. Phase 2 - Focus Group Interviews a. A minimum of eight (8) focus group interviews will be conducted by Babble Center researchers. Two group interviews will be conducted in each of the SAPD's four geographic districts, one in English and one in Spanish. b. The SAPD will provide venues. Recording equipment, consent forms, and related supplies will be the responsibility of Babble Center staff. c. Babble Center researchers will be responsible for recruiting and gaining consent of participants following federal research guidelines as overseen by Chapman University's IRB. Data will be collected and analyzed by the Babble Center. Participant information will not be shared with the SAPD. Participant reports will be considered confidential, Subjects will not be compensated. ill. Phase 3 - Community Survey a. Using information from phases 1 and 2, Babble Center researchers will create an online survey and accompanying website using resources of Chapman University. b. The online survey will be hosted on Chapman University servers and all online responses will be collected and managed by Chapman University. The SAPID will not have access to individual surveys or identifiable responses. Results will be presented in summary form to the SAPD by Babble Center researchers. c. Babble Center researchers will provide a paper copy of the survey for translation and distribution to residents who are not able to respond to an online survey. The SAPD will cover costs of translation, printing, and distribution of the paper survey. Paper surveys will be mailed directly to the Babble Center at Chapman University. The Babble Center will maintain control over all completed paper surveys and will be responsible for data entry and management as well as procedures and recordkeeping regarding consent. d. The Babble Center will collect, manage, document, and store all data according to federal guidelines as overseen by Chapman University's IRB. Babble Center researchers will manage consent. Survey data will be anonymous. e. The SAPD will publicize the web site and survey through its mailings, f. Participants will not be compensated. Iv. Phase 4: Best Practices Report Babble Center researchers will review agency and scholarly literature to produce a "best practices" report for the SAPD. 25A-12 Chapman University Deliverables 1. Report on community forums: Report identifies themes and perspectives that emerged from the community forums. The focus will be on information that will guide formation of the focus group interview protocol and online survey. 2. Report on focus groups: Report identifies themes and perspectives emerging from focus groups that need further exploration in community survey. 3. Community survey: An online survey of community residents conducted through Chapman's Qualtrics survey system. 4. Final report 1: Summary of findings from all three phases of data collection and recommendations for prioritizing community policing efforts. 5. Final report 2: Best practices in community policing as identified in the research literature. 25A-13 EXHIBIT B 25A-14 EXHIBIT C ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY 1. By endorsement to its Commercial General Liability insurance policy, Chapman University agrees to name the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees and agents 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 under this Agreement. 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, the parties agree that should any of the required policies be canceled, non -renewed, or coverage and/or limits reduced or materially altered before the expiration date thereof, the Insured, their Broker or the issuing company will provide 30 days written notice to the other party. Each COI shall specify that SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED TO City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701 IN ACCORDANCE WITH THE POLICY PROVISIONS. 25A-15 25A-16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: HISTORIC PROPERTY PRESERVATION AGREEMENT NO. 2016-30 FOR THE PROPERTY LOCATED AT 2108 NORTH GREENLEAF STREET (STRATEGIC PLAN NOS. 5, 2,3) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: :••.• .r, ❑ 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 Clerk of the Council to execute the attached Mills Act agreement with Robert F. and Michelle A. Donahue, property owners, for the structure located at 2108 North Greenleaf Street, subject to non -substantive changes approved by the City Manager and City Attorney. HISTORIC RESOURCES COMMISSION ACTION On January 26, 2017, the Historic Resources Commission recommended by a vote of 6:0 (Schaefer absent, Murashie abstained) that the City Council authorize the City Manager and Clerk of the Council to execute the attached Mills Act agreement with Robert F. and Michelle A. Donahue, property owners, for the structure located at 2108 North Greenleaf Street, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION This action allows for the approval of a Historic Property Preservation Agreement (Mills Act Contract) which provides a potential property tax reduction allowing the property owner to reinvest the tax savings into the maintenance of the historic property (Exhibit A). Additionally, the agreement prevents inappropriate alterations to the historic structures. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #2 (expand opportunities for conservation and environmental sustainability) and Objective #3 (facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods). 25B-1 Historic Property Preservation Agreement No. 2016-30 with Robert and Michelle Donahue February 21, 2017 Page 2 FISCAL IMPACT The Historic Property Preservation Agreement will reduce the property tax revenue account (No. 01102002-60011) to the City by an estimated $92.26 to $461.31 annually, for a period of not less than ten years. APPROVED AS TO FUNDS AND ACCOUNTS: v""gyt Hassan Hagh i, AI( Francisco Gutierrez Executive Director Executive Director Planning & Building Agency Finance & Management Services Agency IO:rb to\Historic Documents\Historic Docs 2017\P,Brown House 2108NGreenleafStreet.cc Exhibit: A. Historic Resources Commission Staff Report 25B-2 v i1.\T REQUEST FOR Historic ` ResourcesCommission Y.* Action c. e HWO 1 O DATE: JANUARY 26, 2017 TITLE: PUBLIC HEARING — HISTORIC RESOURCES COMMISSION APPLICATION NO.2016-31, HISTORIC REGISTER CATEGORIZATION NO.2016-29, AND HISTORIC PROPERTY PRESERVATION AGREEMENT NO.2016-30 FOR PROPERTY LOCATED AT 2108 NORTH GREENLEAF STREET {STRATEGIC PLAN NOS. 5, 2, 5,3) Prepared by . Ivan Orozco APPROVED ❑ As Recommended • As Amended ❑ Set Public Hearing For CONTINUED TO Df9ctor Planning Manager RECOMMENDED ACTION 1. Adopt a resolution approving Historic Resources Commission Application No. 2016-31 and Historic Register Categorization No. 2016-29. 2. Recommend that the City Council authorize the City Manager and Clerk of the Council to execute the attached Mills Act agreement with Robert R and Michelle A. Donahue, subject to non -substantive changes approved by the City Manager and City Attorney. Request of Applicant Robert F. and Michelle A. Donahue are requesting approval to designate an existing residence located at 2108 North Greenleaf Street to the Santa Ana Register of Historical Properties, as well as approval to execute a Mills Act agreement with the City of Santa Ana for the property. Protect Location and Site Description The subject property is known as the P. Brown House and consists of a 2,416 square foot two-story Tudor Revival style residence with an attached garage on a 7,250 square foot residential lot located on North Greenleaf Street between West Nineteenth Street and West Santa Clara Avenue (Exhibit 1). Analysis of the issues Historic Listing In March 1999, the City Council approved Ordinance No. NS-2363 establishing the Historic Resources Commission and the Santa Ana Register of Historical Properties. The Historic Resources Commission may, by resolution and at a noticed public hearing, designate as historical EXHIBIT A 25B-3 HRC No, 2016-29, HRCA No. 2016-31, and HPPA No. 2016-30 January26, 2017 Page 2 property any building or part thereof, object, structure, or site having importance to the history or architecture of the city in accordance with the criteria set forth in Section 30-2 of the Santa Ana Municipal Code (SAMC). This project entails applying the selection criteria established in Chapter 30 of the Santa Ana Municipal Code (Places of Historical and Architectural Significance) to determine If this structure is eligible for historic designation to the Santa Ana Register of Historical Properties. The first criterion for selection requires that structures be 50 or more years old; The structure identified meets the minimum selection criteria for inclusion on the Santa Ana Register of Historical 'Properties pursuant to criteria contained in Section 30-2 of the Santa Ana Municipal Code, No known code violations exist at this property.. The property, recognized as the P. Grown House, has distinctive architectural features of the Tudor Revival style, and was built in 1936 byO. F. Fowler, Character definingfeaturesof the P. Brown House that should be preserved include, but,may not be limited to, materials and finishes including stucco; wood shake roofing material, original windows, stone chimney, massing and articulation (Exhibit 2). It is. recommended that the house is designated to the Santa Ana Register of Historical Properties under Criterion 1 for its characteristics of the Tudor Revival style of architecture. Additionally, the house has been categorized as "Contributive"' because it is a "good example of period architecture." Mills Act Agreement Ordinance No. NS-2382 authorized the Historic Resources Commission to execute Historic Property Preservation Agreements (HPPA), commonly known as Mills Act agreements for eligible properties (Exhibit 3). To be eligible for the Mills Act, the property must be listed on the Santa Ana Register of Historical Properties. The Historic Resources Commission Application and Historic Register Categorization actions proposed for this site authorize the listing of the property on the local register. The agreement provides monetary incentive to the property owner In the form of a property tax reduction in exchange for the owner's voluntary commitment to maintain the property in a good state of repair as necessary to maintain its character and appearance, Once recorded, the agreement generates a different valuation method in determining the property's assessed value, resulting in tax savings for the owner. Aside from the tax savings; the benefits Include: . Long term preservation of the property and visual improvement to the neighborhood • Allows fora mechanism to provide for property rehabilitation • Provides additional incentive for potential buyers to purchase historic structures • Discouragesinappropriate alterations to the property Upon consideration of the application, it is recommended that the Historic Resources Commission recommend that the City Council authorize the City Manager and Clerk of the Council to execute the attached Mills Act agreement with Robert F, and Michelle A. Donahue, subject to non -substantive changes approved by the City Manager and City Attorney. 25B-4 HRC No, 2016-29, HRCA No. 2016-31, and HPPA No. 2016-30 January 26, 2017 Page 3 Public Notification The subject site is located within the Floral Park Neighborhood. The president of this neighborhood association was notified by mail 10 days prior to this public hearing. In addition, the Floral Park Neighborhood president was contacted to ensure that they were notified of the project and to see if there were any areas of concern. No areas of concern were identified by the neighborhood association president, nor was there a request that the applicant present the project to a meeting of its members. The project site was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and malted notices were sent to all property owners within 500 feet of the project site. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. CEQA Compliance In accordance with the California Environmental Quality Act, the recommended actions are exempt from further review under Section 15331, Class 31, as these actions are designed to preserve historic resources. Categorical Exemption No. 2017-03 will be filed for this project. Strategic Plan Alignment Approval of this item supports the City's efforts to meet Goal No. 6 Community Health, Livability, Engagement & Sustainability, Objective No. 2 (expand opportunities for conservation and environmental sustainability) and Objective No. 3 (facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods). Based on the analysis provided within this report, staff recommends that the Historic Resources Commission adopt a resolution approving Historic Resources Commission Application No. 2016-31, Historic Register Categorization No. 2016-29, and Historic Property Preservation Agreement No. 2016-30. Ivan Orozco Assistant Planner II IO:jm iMistndc ©ocumentslHistok hoes 201AP.Brown House 2108NGreenleafStreet.StaffReport.lire Attachments: Exhibit 1 - 500' Radius Map Exhibit 2 - Department of Parks and Recreation Form Exhibit 3 - Mills Act Agreement 25B-5 EXECUTIVE SUMMARY P. BROWN HOUSE 2108 N. Greenleaf Street Santa Ana, CA 92706 P, Brown House REF. NO. 2108 N. Greenleaf StreetSanta FADDRESS Ana7_:F ORANGE COUNTY 1936 ISTER CATEGORY: Contributive STRICT N/AOOD Floral Park CALIFORNIA REGISTER CRITERIA FOR EVALUATION 3 CALIFORNIA REGISTER STATUS CODE 5S3 Location: ❑ Not for Publication 0 Unrestricted ❑ Prehistoric 0 Historic ❑ Both ARCHITECTURAL STYLE: Tudor Revival Style The Tudor Revival Style looked to medieval England for its inspiration. Signature features of the style include steeply pitched gables; decorative half-timbering; arched openings, often Tudor or Gothic in form; asymmetrical arrangements of building features; tall bride chimneys; and picturesque windows of leaded glass or diamond patterned lights. The more ambitious examples of the Tudor Revival Style were executed in brick or even stone; however, stucco over wood frame Is quite common in the forgiving climate of southern California. The Tudor Revival Style was favored primarily for residential buildings, although small scale commercial buildings in the style also occur. Born in the late 19a, century, the Tudor Revival was associated with some Craftsman era building but was most popular during the 1920s and 1930s. One important feature of the R Brown House is the fact that even though the residence is primarily a Tudor Revival, it also carries along architectural features of the French Normandy Style. Contrary to the typical Tudor homes which have a steeply pitched gable, this residence has a steeply pitched hip roof that continues throughout to the second floor roof. The window panes are squared in design, different from the diamond shape window panes seen in a traditional Tudor Revival Home. The overall character of the home provides a Tudor feel with combined features in the form of French Normandy Flair. SUMMARYICONCLUSION: The P. Brown House qualifies for listing in the Santa Ana Register of Historical Properties for its exemplification of the characteristics of the Tudor Revival Style with French Normandy Influence. Additionally, the house has been categorized as "Contributive" because it "contributes to the overall character and history" of Santa Ana, and, as an example of the Tudor Revival Style "is a good example of period architecture" (Municipal Code, Section 30-2.2). EXPLANATION OF CODES: . California Register Criteria for Evaluation: (From California Office of Historic Preservation, Technical Assistance Series # 7, "How to Nominate Resources to the California Register of Historical Resources," September h, 2001.) 3; it embodies the distinctive characteristics of a type, period, region, or method of construction, or represents the work of a master, or possesses high artistic values. . It embodies the distinctive characteristics of a type, period, region, or method of construction, or represents the work of a master, or possesses high artistic values. 583: Appears to be individually eligible for local listing or designation through survey evaluation EXHIBIT 2 25B-7 State of California —The Resources Agency Primary # DEPARTMENT OF PARKS AND RECREATION HRI # PRIMARY RECORD Trinomial NRHP Status Code_ Other Listings Review Code _ Reviewer_.._.___„_,_. — Date Pagej,_ of A Resource name(s) or number (assigned by recorder) V. ktrown House P1. Other Identifier: *P2. Location: ©Not for Publication ®Unrestricted *a, County Orange County *b. t)SCS 7.5' quad TCA1725 Date: *c. Address 2108 N. Greenleaf Street City Santa Ana Zip 92706 *a. Other Locatlonai Data: Assessor's Parcel Number 002.081-15 *P3a. Description: (Describe resource and its major elements. Includedesign, materials, condition, alterations, size, setting, and boundaries.) The P. Brown House is designed in unique Tudor Revival Style of architecture. The structure reveals distinctive characteristics of a French Normandy Influence. The home is sheathed in stucco and has a steeply pitched hip roof design throughout that creates a cake layer effect to the second floor. The structure is capped with a wood shake roofing material. At the front elevation, a single dormer can be seen from the street, similar in design to a dormer used in French Normandy Style architecture. The front elevation is sided with natural stone that can be seen throughout most of the chimney. The use of natural stone to accent the stucco clad material of the home creates a variation in texture. The chimney is then capped with a red brick design and a double flue. The massing of the chimney helps illustrate features of the French Normandy influence. The first characteristic is its large size, an indication of wealth and luxury, similar to that of the Tudor castles. The entry opens onto a covered porchlet, elevated on two steps located to the right of the east elevation. In true French Normandy style, the windows throughout the home are multi -pane casements. The garage is fitted with a modern door, having a vintage appearance, helping create consistency In the design. A small outdoor patio is provided at the front of the home with mature landscaping and ground cover. Atthe front of the property, a stone path leads to the patio area just before arriving at the front door; Keeping with the Tudor Revival Style of architecture, a peekaboo door integrates the overall feel of grandeur of the front entrance. *P3b. Resource Attributes: (list: attributes and codes) HP2. Single-family Property *P4, Resources Present: ■Building ❑Structure []Object OSite ❑District ❑ Element ofDistrict ❑OtherQ P5b. Photo: (view and date) .South facing elevation 2016 *P6. Date Constructed/Age and Sources: ■historic 1950/City of Santa Ana Building Permits *P7. Owner and Address: Robert F. and Michelle A. Donahue 2108 N. Greenleaf Street Santa Ana, CA 92706 *P0. Recorded by: Ivan Orozco 20 Civic Center Plazas Santa Ana, CA 92702 W. Date Recorded: January 26, 2017 *P10. Survey Type: Intensive Survey Update *P11. Report Citation: (Cite survey report and other sources, or enter "none") *Attachments: []None ❑Location Map ❑Sketch Map ■Continuation Sheet ■Building, Structure, and Object Record []Archaeological Record ❑District Record ❑Linear Feature Record []Milling Station Record ❑Rock Art Record []Artifact Record ❑Photograph Record ❑ Other (list) DPR 523A (1195) r *Required information State of California —The Resources Agency Primary # DEPARTMENT OF PARKS AND RECREATION HRI#—__._._ BUILDING, STRUCTURE, AND OBJECT RECORD Page 2 of 4 *CHR Status Code 5S1 "Kasource Name or if: v. Brown mouse 131. Historic Name: P. Brown House B2. Common Name: Same B3. Original Use: Single-family Residence B4. Present Use: Single-family Residence *85. Architectural Style: Tudor Revival Style *136. Construction History: (Construction date, alterations, and date of alterations): Constructed 1936 July, 1936. Residence and garage. $6,000. April, 1972. Enclosed Patio, $400. April, 1992. Reroof. $8,000. *B7. Moved? allo OYes ❑Unknown "Ell. Related Features: None. 139a. Architect: Unknown Date: Original b. Builder: O. F. Fowler *B10. Significance: Theme Residential Architecture Area Santa Ana Period of Significance: circa 1895-1965 'Property Type: Single-family Residence Applicable Criteria: CR: SS3 (Discuss importance in terms of historical or architectural context as defined by theme, period, and geographic scope, Also address Integrity) The first residents of this residence were Phillip M. Brawn and his wife, Helen T. Brown. Mr. Brown was born in Sheridan Wyoming on April 1$'1 1894. Mr. Brown moved to California in the 1930's with his wife, where they rented an apartment in Santa Ana. In 1935, Helen gave birth to a baby girl at the local St. Joseph's Hospital and named her Sarah P. Brawn, It wasm't until 1936 when Mr.. Brownpurchased his first home, located at 2108 N. Greenleaf Street. Mr. Brown hold many positions in various financial institutions, some of those positions were concurrent to others. At point in his life, Mr. Brown was the Section manager to the Business Men's Association of Santa Ana, the Section Manager to the Credit Bureau of South Orange County, and the General Manager of the Better Business Bureau of Santa Ana. In 1942, at the age of 48 he registered for service for the World War II draft, although there are no records of him being sent abroad. In 1957, at the age of 63, Mr. Brown passed. (See Continuation Sheet 3 of 3,) B11. Additional Resource Attributes: (List attributes and codes) *812. References: City of Santa Ana Building Permits Santa Ana History Room Collection, Santa Ana Public Library Sanborn Mops Harris, Cyril M. American Architecture: An Illustrated Encyclopedia. New York, W W Norton,1998. Marsh, Diann. Santa Ana An Illustrated History. Encinitas, Heritage Publishing, 1994. (See Continuation Sheet 3 of 4.) 813. Remarks: *B14. Evaluator: Ivan Oroaco *Date of Evaluation: January 26, 2017 DPR 5238 (1195) (This space reserved for official comments.) Sketch Map 002-081-15 2108 N. Greenleaf Street iliac r7 iQ tl D81 r7 f4 r5 iG it 819 PC rVtl. 8 �9 12 1 t0 'tl 9. I I i I 1 Ij q9 di 2P Rik , 2 #L ' 25B-9 State of California —The Resources Agency Primary # DEPARTMENT OF PARKS AND RECREATION HRI # tCONTiNUATION SHEET" Trinomial by Ivan Orozco 'Date January 26, 2017 21 Continuation ❑ Update '610. Significance (continued); Santa Ana was founded by Wilitam Spurgeon in 1869 as a speculative town site on part of the Spanish land grant known as Rancho Santiago de Santa Ana. The civic and commercial core of the community was centered on the intersection of Main and Fourth Streets. Stimulated by the arrival of the Santa Fe Railroad and incorporation as a city in 1886, and selection as the seat of the newly created County of Orange in 1 B89, the city grow outwards, with residential neighborhoods developing to the north, south, and east of the city center. Agricultural uses predominated in the outlying areas, with cultivated fields and orchards dotted with widely scattered farmhouses. The P. Brown House is located in Floral Park, a neighborhood northwest of downtown Santa Ana bounded by West Seventeenth Street, North Flower Street, Riverside Drive, and Broadway, Groves of oranges, avocados and walnuts, and widely scattered ranch houses characterized this area before 1920. Developer and builder Allison Honer (1897-1981), credited as the subdivider and builder of a major portion of northwest Santa Ana, arrived in Santa Ana from Beaver Falls„ Now York In 1922 (Talbert, pages 353-356), "Before nightfall on the day of his arrival, Mr. Honer purchased a parcel of land. And that month, he began building custom homes in Santa Ana" (Orange County Register, September 16,1981), The parcel chosen became the Floral Park subdivision between Seventeenth Street and Santiago Creek. "When built in the 1920s, the Floral Park homes were the most lavish and expensive in the area. They sold for about $45,000 each' (Orange Count' Register, September 15, 1981). Revival architecture in a wide variety of romantic styles was celebrated in the 1920s and 1930% Floral Park showcased examples of the English Tudor, French Norman, Spanish Colonial, and Colonial Revival styles. The Allison Honer Construction Company went on to complete such notable projects as the 1935 Art Deco -styled Old Santa Ana City Hall, the El Toro Marine Base dudng World War II,, and the 1960 Honer $hopping Plaza. Honer lived in the neighborhood he had helped create, at 615 West Santa Clara Avenue. In the late 1920E and 1930s, another builder, Roy Roscoe Russell (1881-1965). continued developing the groves of Floral Park. An early Russell projectwas his 1928 subdivision of Victoria Drive between West Nineteenth Street and West Santa Clara.Avenue. The homes were quite grand and displayed various revival styles, including Russell's own large, Colonial Revival mansion at 2009 Victoria Drive. In the early post -World War it years, Floral Park continued its development as numerous smaller, single-family houses were built. Continuing in the Floral Park tradition, they were mostly revival in style. In the i950s, low, horizontal Ranch Style houses completed the growth of Floral Park. Today (2007), Floral Park maintains its identity as the premier neighborhood of Santa Ana, historically home to many affluent and prominent citizens. The P. Brown House qualities for listing In the Santa Ana Register of Historical Properties, for its representation of the characteristics of the Tudor Revival style. Additionally, the house has been categorized as "Contributive" because "it Is a good example of period architecture". Character defining features' Include roof material and chimney configuration, original casement windows, and all exterior materials. B12. References (continued): McAlester, Virginia and tee. A Field Guide to American Houses. New York: Alfred A. Knopf, 1984. National Register Bulletin 16A. "How to Complete the National Register Registration Form " Washington DC; National Register Branch, National Park Service; US Dept. of the Interior,1991. Office or Historic Preservation. ''Instructions for Recording Historical Resources." Sacramento: March 1995. Santa Ana and Orange County Directories, 1932-1964. Whiffen, Marcus. American Architecture Since 1780, Cambridge: MIT Press, 1969. "Alison Honer Dies at84, The Santa Ana Journal, September21, 1981, "Builder of Honer Plaza Dies," Orange County Register, September 15, 1981, "History of Floral Park." http.*/Iwww,floral-oark,comlpacie2.htm]. Ancestry.com Newspapers.com (Santa Ana Register) DPR 523E 25B-10 MILLS ACT AGREEMENT 2108 N. Greenleaf Street Santa Ana, CA 92706 RECORDING REQUESTED BY: City of Santa Ana AND WHEN RECORDED MAIL TO: City of Santa Ana Attn: City Clerk 20 Civic Center Plaza (M-30) Santa Ana, CA 92702 FREE RECORDING GOVERNMENT CODE §6103 HISTORIC PROPERTY PRESERVATION AGREEMENT This agreement ("Agreement") is made and entered into this February 21, 2017 by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing -,under the Constitution and laws of the of the State of California (hereinafter referred to as "City"), Robert F. Donahue and Michelle A. Donahue, (hereinafter referred to as fawners"), owners of real -property located at 2108 N. Greenleaf Street, Santa Ana, California, in the County ofOrange and listed on the Santa Ana Register of Historical Properties. RECITALS A. The City Council of the City of Santa Aria is authorized by California Government Code Section 50280 of seq. (known as the "Mills Act") to enter into contracts with Owner of qualified historical properties to provide for appropriate use, maintenance, rehabilitation and restoration such that these historic properties retain their historic character and integrity. B. The Owner possess 'fee title in and to that certain qualified read property together with associated structures and improvements thereon, located at 21.08 N. Greenleaf Street, Santa Ana, CA, 92706 and more particularly described in Exhibit `"A," attached hereto and incorporated herein by reference, and hereinafter referred to as the "Historic Property". C. The Historic Property is officially desighated on the Santa Ana Register of Historical Properties pursuant to the requirements of Chapter 30 of the Santa Ana Municipal Code. D, The City and the property Owner, for their ,mutual benefit, now desire to enter into this Agreement which defines and limits the use and alteration of this Historic Property in order to enhance and maintain its value as a cultural and historical resource for the Owner and for the community; to prevent inappropriate alterations to the Historic Property and to ensure that repairs, additions, new building; and other changes are appropriate; and to ensure that rehabilitation and maintenance are carried out in an exemplary manner. EXHIBIT 3 25B-11 MILLSACTAGRGFMENT 2108 N. Greenleaf Stivet Santa Ann, C4 92706 E. The Owner and the City intend to carry out the purposes of California Government Code, Chapter 1, Part 5 of Division I of Title 5, Article 12, Section 50280 et saq., which will. enable the Historic Property to qualify for an assessment of valuation as a restricted historical property pursuant to Article 1.9, Sec. 439 et seq., Chapter 3 Part 2 of Division I of the California Tax and Revenue Code, NOW, THEREFORE, the City of Santa Ana and the Owner of the Historic Property agree as follows:. 1. Effective Date and Terms of Agreement. This Agreement shall be effective and commence oil February 21, 2017, and shall remain in effect for a tern of ten (10) years thereafter. Each year, upon the anniversary of the effective date of this Agreement, such initial ternwill automatically be extended as provided in California Government Code Sections 50280 throirgli 50290 and in Section 2, below.. 2. Renewal. a. Each year on the anniversary of the effective date of this Agreement, a year shall automatically be added to the initial ten (10) year term of this Agreerment unless written notice of nonrenewal is served as provided herein. b; If the Owner or the City desire(s) in any year not to renew the Agreement, the Owner or City shall serve written notice of runirenewal of the Agreement on the other party. Unless such notice is served by the Owner to the City at least ninety (90) days prior to the annual renewal -date, or served by the City to the owner at least sixty (60) days prior to the annual renewal date, one (1) year shall automatically be added to the term of the Agreement as provided herein, C. Within 30 days from receipt of City's notice of nonrenewal, the Owner may file a written protest of City's decision of nolirenewal. The City may, at any time prior to the annual renewal date of the Agreement, withdraw its notice to the Owner ofnatuenewal. d, If either the Owner or the City serves notice to the other of nomenewal in any year, the Agreement shall remain in effect for the balance of the tern then remaining, either from its original execution or from, the last renewal of the Agreement, whichever rmy apply. 3. Standards and Conditions for Historic Property. During the terat of this Agreement, the Historic Property shall be subject to the following conditions, requirements and restrictions: a. Owner shall maintain the Historic Property in a good state of repair and shall preserve, maintain, and, where necessary, restore or rehabilitate the property and its character - defining features, notably the general architectural form, style; materials, design, scale, -2- 25B-12 MILLS ACT AGREFAIENT 2108 N. Greenleaf Street Santa Ana, CA 92706 proportions, organization of windows, doors, and other openings, textures, details, mass, roof fine, porch and other aspects of the appearance of the exterior to the satisfaction of the City. b. All changes to the Historic Property shall comply with applicable City plans and regulations, and conform to the rules and regulations of the Office of Historic Preservation of the State of Department of Parks and Recreation, namely the U.S. Secretary of the Interior's Standards and Guidelines for Historic Preservation Projects. These guidelines are attached hereto, marked as Exhibit B, and incorporated herein by this reference. The condition of the exterior of the property, as of the effective date of this .Agreement, is documented in photographs attached hereto as Exhibit B and incorporated herein by reference. Owners shall continually maintain the Historic Property in the same or better condition. C. A view corridor enabling the general public to see the Historic Property from the public right-of-way shall be maintained, and Owners shall not be permitted to block the view corridor to the property with any new structure, such as walls, fences or shrubbery, so as to prevent the viewing of the historic landmark by the public. d. The following tire prohibited: Demolition of the Historic Property or destruction of character -defining features of the building or site; removal of trees and other major vegetation unless removal is approved by a 'rehabilitation plan approved by the Historic Resources Commission, paving of yard surface; exterior alterations or additions unless approved by the Historic Resources Commission and such alternations are in keeping with the Secretary of Interior's Standards deteriorating, dilapidated or unrepaired structures sucli as fences, roofs, doors, walls, and windows; storage of junk, trash, debris, discarded or unused. objects such as cars, appliances; or furniture; and other unsightly by decoration, structure or vegetation which is unsightly by reason of its height, condition, or inappropriate location. e. Owners shall allow reasonable periodic examination, by prior appointment, of the interior and exterior of the Historic Property by representatives of the County Assessor, the State Department of Parks and Recreation, the State Board of Equalization, and the City of Santa Ana as may be necessary to determine the Owner's compliance with the terms and provisions of this Agreement. A. Furnishing of Information, The Owners hereby agree to furnish the City witli any and all information requested which maybe necessary or advisable to determine compliance with the ternis and provisions of this Agreement. -3- 25B-13 MILLS ACT AGRGaEMENT 2108N. GreendeafStreet Santa Ana, CA 92706 5. Cancellation. a. The City, following a duly noticed public hearing by the City Council as set forth in Government Code Section 50280, et. seq., may cancel this Agreement if it detenmines that the Owners have breached any of the conditions of this Agreement, or have allowed the property to deteriorate to the point that it no longer lueets the standards 'For a qualified Historic Property, or if the City determines that the Owners have failed to restore or rehabilitate the property in the manner specified in Section 3 of this Agreement. If a contract is cancelled for these reasons, the Owners shall pay a cancellation fee to the County Auditor as set forth in Government Code Section 50286. This cancellation fee shall be a percentage (currently set at twelve and one-half (12 %) percent by Government Code Section 50286) of the current fair racket value of the property at the time of the cancellation,' as determined by the county assessor, without regard to any restriction imposed pursuant to this Agreement. b. If the Historic Property is destroyed by earthquake, fire, flood or other natural disaster such that in the opinion of the City Building Official more than sixty (60) percent of the original fabric of the structure must be replaced, this Agreement shall be canceled because, in effect, the historic Glue of the structure will have been destroyed, No fee shall be imposed in the case of destruction by acts of God or natural disaster, c, If the Historic property is acquired by eminent domain and the City Council determines that the acquisition firistrates the purpose of this Agreement, this Agreement shall be cancelled and no fee imposed, as specified in Government Code Section 50288. 6, Enforcement of Agreement, a. hh lieu of and/or in addition to any provisions to cancel the Agreement as referenced herein, the City may specifically enforce, or enjoin the breach at, the terms of the Agreement. In the event of a default, under the provisions to cancel the Agreement by the Owners, the City shall give written notice to the Owners by registered or certified mail, and if such a violation is not corrected to the reasonable satisfaction of the Executive Director of Planning and Building Agency or designee within thirty (30) days thereafter, or if not corrected within such a reasonable time as may be required to cure the breach or default, or default cannot be cured within thirty (30) days (provided that acts to cure the breach or default may be commenced within thirty (30) days and shall thereafter be diligently pursued to completion by the Owners), then the City may, without further notice, declare a default under the terms of this Agreement and may bring any action necessary to specifically enforce the obligations of the Owners growing out of the terms of this Agreement, apply to any court:, state or federal., for injunctive relief against any violation by the Owner or apply for such relief as may be appropriate. b. The City does not waive any claim of default by the Owner if the City does not enforce or cancel this Agreement. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in the City's regulations governing historic properties are available to the City to pursue in the event that there is a breach of this Agreement. No waiver by _4_ 25B-14 MILLS ACT AGRFFNIF.NT 2108 N. Greentea0sreet Santa Ana, CA92706 7. Binduag effect of Agreement. a. The Owners hereby subject the Historic Property, located at 2108 N. Greenleaf Street, Assessor Parcel Number, 002-081-15, and more particularly described in Exhibit A, in the City of Santa Ana, to the covenants reservations, and restrictions as set forth in this Agreement. b. The City and Owner hereby declare their specific intent that the covenants, reservations and restrictions as set forth herein shall be deemed covenants running with the 'land and shall pass to and be binding upon the Owner's successors and assigns in title or interest to the Historic Property. Every contract, deed, or other instrument hereinafter executed, covering or conveying the Historic Property or any portion thereof, shall conclusively be held to have been executed, delivered, and accepted subject to the tenants, restrictions, and reservations expressed in this Agreement regardless of whether such covenants, restrictions and reservations are set forth in such contract, deed, or other instrument. 8. No Compensation. Owners shall not receive any payment from the City in consideration of the obligation imposed under this Agreement, it being recognized that the consideration for the execution of this Agreement is the substantial public benefit to be derived therefrom and the advantage that will accrue to the Owner as a result of the effect upon the assessed value of the property on the account of the restrictions on the use and preservation of the property. 9. Notice. Any notice .required by the tents of this Agreement shall be sent to the address of the respective parties as specified below or at other addresses that may be later specified by the parties hereto. City: City of Santa Ana Attn: City Clerk 20 Civic Center Plaza (M-30) Santa Ana, CA 92702 Owners; Robert P, and Michelle A. Donahue 2108 N. Greenleaf Street Santa Ana, CA 92706 10. General Provisions. a. None of the terns, provisions, or conditions of this Agreement shall be deemed to create a partnership between the parties hereto and any of dicir heirs, successors, or assigns, -5- 25B-15 MILLS ACT AGkL^EWNT 2108 N. Greenleaf Street Santa Ana, CA 92706 nor shall such terns, provisions or conditions cause them to be considered joint ventures or members of any joint enterprise. b. The Owners agree to slid shall indemnity and hold the City and its elected and appointed officials, officers, agents, and employees harmless from liability for danage or claims for damage for personal injuries, including death, and claims for property damage which may arise from the direct or indirect use or operations of the Owner or those of his or her contractor, subcontractor, agenda, employee, or other person acting on his or her behalf which relates to the use, operation, and maintenance of the Historic Property. The Owners hereby agree to and shall defend the City and its elected and appointed officials, officers, agents, and employees with respect to any and all actions for damages caused by, or alleged to have been caused by, reason of the Owner's activities in connection with the Historic Property: c, This hold harmless provision applies to all damages and claims for damages suffered, or alleged to have been suffered, and costs of defense incurred, by reason of the operations referred to in this Agreement regardless of whether or not the City prepared, supplied, or approved the: plans, specifications or other docuirients for the'Historic Property. d. All of the Agreements, rights, covenants, reservations; and restrictions contained in this Agreement shall be binding upon and ,shall inure to the benefit of the parties herein, their heirs, successors, legal representatives, assigns, and all persons acquiring any part or portion of the Historic Property, whether by operation of law on in any manner whatsoever. e. In the event legal proceedings are brought by any party or parties to enforce or restrain a violation of any of the covenants, reservations; or restrictions contained herein, or to detennine the rights and dirties of any party hereunder, the prevailing party in such proceeding may recover all reasonable attorney's fees to be fixed by the court, in addition to court costs and either relief ordered by the court. % hi the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portions thereof, shall not be effected thereby. g. This Agreement shall be construed and governed in accordance with the laws of the State of California. II. Recordation. No later than twenty (20) days after the parties execute and enter into this Agreement, the City shall cause this Agreement to be recorded in the office of the County Recorder of the County of Orange. 12. Notice of the Contract to Office of historic Preservation. No 'later than six (6) months of entering into the contract, the owner or agent of an owner shall provide written notice of this Agreement to the Office of Historic Preservation. -b- 25B-16 M7LLSACTAGREEMENT 2108 A Greenleaf Street Santa Ana, CA 92706 13. Amendments. This Agreement may be amended, in whole or in hart, only by a written recorded instrument executed by the parties hereto. 14. Effective Date This Agreement shall be effective on the day and year first written above. 15. Signatures. ATTEST: MARIA D. HUIZAR Cleric of the Council Owner Date: Date: APPROVED AS TO FORM: SONIA CARVALHO City Attorney By: c' Lisa Storck Assistant City Attorney CITY OF SANTA ANA GERARDO MOUET Acting City Manager By:.__ Robert F. Donahue By: _ Michelle A. Donahue RECOMMENDED FOR APPROVAL: HASSAN HAGHANI Executive Director Planning and Building Agency 25B-17 HILLS ACTACREEMENT 21#8N. GreenleafStrevt Santa Ann, CA 92706 Exhibit A N TR 879 BLK LOT 14 filed in the Office of the County Recorder of Orange County. Assessor's Parcel Number: 002-081-�15 -s- 25B-18 MILLS ACTAGREEMENT 2I08N. Greenlen/'S"et Santa Ann, CA 02706 Exhibit B Exterior work shall be reviewed by the Historic Resources Commission and subject to the U.S. Secretary of the Interior's' Standards for Rehabilitation of Historic Buildings, as follows: i. Every reasonable effort shall be made to provide a compatible use for a property which requires minimal alteration of the 'building, structure, or site and its environment, or to use a property for its originally intended purpose, 2. The distinguishing original qualities or character of a building, structure or site and its environment shall not be destroyed. The removal or alteration of any historic material or distinctive architectural features should be avoided when possible. 3, All buildings, structures, and sites shall be recognized as products of their own time. Alterations that have no historical basis and which seek to create an earlier appearance shall be discouraged. 4. Changes which may have taken place in the course of time are evidence of the history and development of a building, structure, or site and its environment. These changes may have acquired significance in their own right, and this significance shall be recognized and respected. 5. Distinctive stylistic features or examples of skilled craftsmanship which characterize a building, structure, or site shall be treated with sensitivity.. 6. Deteriorated architectural features shall be repaired rather than replaced, whenever possible. In the event replacement is necessary, the new material should match the material 'being replaced in composition, design, color, texture, and other visual qualities. Repair or replacement of missing architectural features should be based on accurate duplications of features, substantiated by historic, physical, or pictorial evidence rather than on conjectural designs or the availability of different architectural elements from the other buildings or structures. 7. The surface cleaning of structures shall be undertaken with the gentlest means possible. Sandblasting and other cleaning methods that will damage the historic building materials shall not be undertaken. 8. Every reasonable effort shall be made to protect and reserve archaeological resources affected by, or adjacent to any project. 9. Contemporary design for alternations and additions to existing properties shall not be discouraged when such alterations and additions do not destroy significant historical, architectural or cultural material, an such design is compatible with -9- 25B-19 MILLS ACTAGBSVNII;NT 2108N. Greenleaf$$-eet Santa Ana, CA 92706 size, scale, color, material and character of the property, neighborhood, or environment. 10, Wherever possible, now additions or alterations to structures shall be done in such a manner that if such additions or alterations need to be removed in the future, the essential fornx and integrity of the structure would be unimpaired. 10- 25B-20 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: APPROVE TENANT INTEREST PURCHASE AGREEMENT FOR BRISTOL STREET IMPROVEMENTS, PHASE3A (PROJ. NO. 136792 NONGENERAL FUND) (STRATEGIC PLAN NOS. 6, 1G; 3, 2C) CITY ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 0 As Recommended [I As Amended 0 Ordinance on 1 B0 Reading 0 Ordinance on 2"d Reading ® Implementing Resolution d Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an Agreement for Acquisition of tenant -seller's interest in real property listed below and goodwill (if any), with the following tenant, subject to nonsubstantive changes approved by the City Manager and City Attorney: No. Tenant 1 Maria Piceno DBA Blooming Flowers & Gifts DISCUSSION Property commonly known as / location 1111 North Bristol Street, Suite M (APN 405-274-10) $6,530 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. On August 16, 2016, the City Council approved the purchase agreement for 1111 North Bristol Street. In order to gain full possession and prepare the area for improvements and widening, tenant interests acquisitions in 1111 North Bristol Street (Exhibit 1) are also necessary. The tenant listed above agreed to quitclaim all of their tenancy interests including loss of goodwill for the listed purchase price. The purchase price was made based on the appraised value prepared by a State -licensed appraiser, and the offer was accepted by the respective tenant -sellers. The purchase agreement (Exhibit 2) contains details of the property and price. 25C-1 Tenant Interest Purchase Agreement for Bristol Street Improvement Phase 3A February 21, 2017 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 $6,530 are anticipated to be received in February 2017, and, until such time, expenditures will not be incurred until receipt of funds and approval by the Finance and Management Services Agency. Funds will be available in the Bristol Street Improvements Project (No. 136792) for expenditure in FY 2016/2017 in the Select Street Construction Fund (Account No. 06917661-66100), subject to nonsubstantive changes. APPROVED AS TO FUNDS & ACCOUNTS: Fre Mousavipo r Frkn�co Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency FMNVG/JG/ML Exhibits: 1. Location Map 2. Agreement for APN No. 405-274-10 25C-2 (NTSS MATCHLINE SEE BELOW RIGHT 10TH STREET 9TH STREET LEGEND! -S OJECT PPOPE"IES -,6'OUIR.EQ PFnFER.TIE:, CIVIC CENTER DR. EXHIBIT 1 - AVENUE WASHINGTON AVENUE MATCHLINE SEE TOP LEFT SANTA ANA TITLE: PURCHASE AGREEMENT FOR 11 AbTEISTOL TREET IMPROVEMENTS FVVVJ H CITY D: PHASE 3A (PROJECT NO. 36792 FEB. 21, 2017 NONGENERAL FUND) PUBLIC WORKS AMICY (Strategic Plan No. 6, 1, G; and 3, 2, C) PAGE 1 OF 1 25C-3 25C-4 Project; Bristol Street Improvement Project — Phase 3A APN; 405-274"10 Tenant -Seller: Maria Piceno dba Blooming Flowers & Gifts AGREEMENT FOR ACQUISITION OF TENANT -SELLER'S INTEREST IN REAL PROPERTY THIS AGREEMENT ("Agreement") is entered into as of this _ day of 2017, 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 MARIA PICENO DBA BLOOMING .FLOWERS & GIFTS ("Tenant -Seller") for the acquisition by Buyer of certain interests in real property described herein. IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS; I, AGREEMENT. Tenant -Seller 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 " Conveyed Improvements") located in, on, or affixed in any mariner to the premises known and numbered as 1111 N. Bristol Street, Suite M, 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 Conveyed Improvements are a part of the Premises, and specifically include, without limitation, the items described in the list of Improvements 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: ,SIX THOUSAND FIVE HUNDRED THIRTY AND NO1100 DOLLARS ($6,530.00) ("Purchase Price") which is computed as follows: Value of Conveyed Improvements as shown on Exhibit B TOTAL AMOUNT PAYABLE THROUGH THIS AGREEMENT $6,530.00 $6,530.00 3, CONVEYANCE OF INTEREST N REAL PROPERTY. Tenant -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. 4. Tenant -Seller vacated the property on U f I - I I /,a Exhibit !] 25C-5 5. QONVEXANCE OF INTEREST IN IMPROVEMENTS, The Quitclaim Deed will also convey from Tenant -Seller to Buyer all of Tenant -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 cleat title to all said Improvements having been obtained and received by Buyer in accordance with Paragraphs 8 and 9 of this Agreement. 6. RECORDING, Recordation of any documents delivered through this Agreement is authorized if necessary or proper, upon acceptance by Buyer as described herein. 7. CERTIFICAT.ION OF OWNERSHIP. Tenant -Seller 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 know of any claim of lien, encumbrance, or other security interest therein, EXCEPT: (a) Trust Deeds on the Property, duly recorded; and (b) real and personal property taxes. &. 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. Li order to establish proof of clear title to the Improvements, Buyer may publish a Notice to Creditors pursuant to the Bulk 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 coullicting 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 finds shall not prevent Closing of this transaction if the total fiords 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 olahn shall not be deemed to be a claim against any specific item of Improvements and Tenant -Seller hcreby 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, 11. 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 hmprovements, 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 25C-6 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, CLQSING• PURC14ASE 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 file following adjustments: 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 fiords when conditions of this Agreement have been satisfied by Buyer and Tenant -Seller. 13. PULL AND COMPLETE SETTLEMENT. Tenant -Sailer 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 Improvements 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 hereby disclaims any right, title or interest in or to the Premises. Tenant -Seller and Buyer and each and all of their agents, representatives, attorneys, principals, predecessors, successors, assigns, administrators, executors, heirs, and beneficiaries (collectively "Releasers"), 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 Inereafter have by reason of any matter or thing arising out of or in any way related to any condemnation action affecting the Properly, the Improvements and the Tenancy Interest. Additionally, Tenant -Seller hereby expressly and unconditionally waives any claims (known or unknown) including loss of goodwill, severance damages, statutory interest, claims for inverse condemnation or unreasonable pre -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. ACKNQ)VLEDGMENT 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 know or suspect to exist in his or her favor at the time of 25C-7 executing the release, which if known by him or her must have materially affected his or her 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 which may give rise to additional damages, loss, costs, or expenses in the future, Nevertheless, Tenant -Seller acknowledges that this 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 -Seller: 15, CONTINGENCY. Transaction is subject to and contingent upon receipt by Buyer of the duly executed Quitclahn Deed from Tenant -Seller 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 1N 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, 14. SURVIVAL OF RIGHTS 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. R Until the Closing, Tenant -Seller shall maintain the Improvements and the Piemises in good condition and state of repair and maintenance, and shall perform all of its obligations tinder 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 Promises, the Improvements or the Tenancy Interest, 25C-8 D. All utilities including gas, eleotrioity, 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 Tenant -Seller, the Premises, the Improvements or the Tenancy Interest may be subject. F. 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 (lovermnent, inoluding, 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) polyclrtorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section '1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et seq, (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42, U.S,C. S6901, of seq. (42 U.S.C. S6901). 22. COMPLIANCE WITH ENVIRONMENTAL LAWS, To the best of Tcnant-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 enviromnental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Envirommental Response Compensation and Liability 25C-9 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 oat, under, in, or about, or the transportation of any such materials to or from, the Premises, or (ii) the violation, or alleged violation, of arty statute, ordinance, order, role, 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 -Seller 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 parties hereto have executed this Agreement the day and year set forth hereinabove. 25C-10 Mailing Address of Tenant -Seller Tenant -Seller PO BOX 61501 Maria Piceno dba Blooming Flowers & Gifts Irvine, CA 92602 Its: Date:____)/ — Mailing Address of Buyer Buyer 20 Civic Center Plaza, M-30 THE CITY OF SANTA ANA Santa Ana, California 92701 By: David Cavazos City Manager Date: Attest: By:__. Maria D, Huizar City Clerk Approved as to Forms By: J n M. Funk Assistant City Attorney Recommended for Approval, By: Fred Mousavipour Executive Director - Public Works Agency 25C-11 EXI11131T A LEGAL DESCRIPTION OIL PROPERTY All that certain real property situated III the County of orange, State of California, described as follows; Parcel 1 of Parcel Map No. 87-340, in the. City of Santa Ana, County of Orange, State of California, as shown on a map filed In 40 and 50 of Parcel Maps, records of orange County, California. �27 L 25C-12 r' XRIBIT B IMPROVEMENTS PERTAINING TO THE REALTY BL00MINO FLOWERS k 0IrTS IMPROVEMENTS PERTAINING 'WITH[ REALTY EFFECTIVE DATE OF VALUF . MAY 11, 2016 Fair Market Rem Vniuo in No. Qty, Description Place 1 2 Sign fascias, 4' x 1611, plastic vinyl loiters, "Flowers", $270 monumont sign mounted 2 2 Accordion seouritygates, 12.5' x 8, metal ftoming, wall- 2,525 bolted 3 1 Lotof concrete paint floor covering, speckled 1,800 4 1 Lot of interior deoeralive wall paint, 2 coots 900 5 1 slat Nvait fixture, 8' x 4, laminote, with 12" deep plywood 170 shelf 6 1 Wall shelf, 6' x I V, laminate, With wall brackets 70 7 1 Utllity sink, 24" x 10" x 24", plastic, single mixing 550 faucet, plumbing 8 1 Lot of setup, Jacks and Installation for I DSL and so tolephono lines 9 37 Liam feet of window border decorativo lighting, LED, 165 Mill fixtures, multi -colored TOTALIMPROVEMENTS PFRTAININO TO TIME REALTY $6,530 25C-13 25C-14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: APPROVE PURCHASE AGREEMENT FOR REAL PROPERTY ACQUISITION FOR BRISTOL STREET IMPROVEMENTS PHASE 4 (PROJECT NO. 116741, NON -GENERAL FUND) (STRATEGIC PLAN NOS, 6, 1G; 3, 2C) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 9 e0 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 a Purchase Agreement for the real property acquisition, temporary construction easement, and goodwill (if any) with the property owners listed below, subject to nonsubstantive changes approved by the City Manager and City Attorney: No. Property Owner Property commonly Acquisition Amount known as / location Type Mario Arevalo, an 1302 W. Saint Andrew Place 1 individual and Raquel (APN 408-332-01) Full $480,000 Arevalo, an individual 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 property acquisition is necessary to accommodate the street improvements for Phase 4 (Exhibit 1). The purchase offer was determined based on appraised values prepared by a California State licensed appraiser and was accepted by the property owner. The compensation amount listed above is incorporated in the attached agreement (Exhibit 2). 25D-1 Purchase Agreement for Real Property Acquisition Bristol Street Improvements Phase 4 February 21, 2017 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 $480,000 are available in the Bristol Street Improvements Project (No. 116741) for expenditure in FY 2016-2017: $240,000 in the Select Street Construction Fund (Account No. 05917660-66100), and $240,000 in the Measure M2 Street Construction Fund (Account No. 03217663-66100), subject to nonsubstantive changes. Freld Mousavipour Executive Director Public Works Agency FM/EWG/JG/ML Exhibits: 1. Location Map 2. Agreement for APN 408-332-01 APPROVED AS TO FUNDS & ACCOUNTS: Francibo Gutierrez Executive Director Finance & Management Services Agency 25D-2 MATCHLINE SEE BELOW RIGHT I I 14DQaDQ-n I , 1 ST GERTRUDE PL I IAOQ471-01 408.471.17 R W co J E m I U 15.194 411- - - - - - -I , p6C11 D15.1<JA-231: -016 194-24! -----� :015 194.25: ' ��� - 'D15.194 3P4 I I � WARNER AVENUE -;UBJEV FP➢PEPIi -CUUI9EP PFGPEFTIE, 1 I - 1 L "-I ST ANDREW PL T-'T'- I I I i I CARLTON PL i i I GLENWOOD PL a r fi fi I j1 '�2I I I I J 7 Cli �.�..� I I j m I NI I I I CA MDEN PL { I I IN/Au �✓ �ST Ll ANNE PL I , T._T-.T4y 1J' l o l I ............. EXHIBIT 1 MATCHLINE SEE TOP LEFT SANTA ANA PURCHASE AGREEMENT FOR F-MCRY COUNCIL BRISTOL STREET IMPROVEMENTS . AGENDA DATE; PHASE 4 (PROJECT NO.116741 FEB. 21, 2017 NONGENERAL FUND) PUBLIC WORKS PAEHGT (Strategic Plan No. 6, 1, GI and 3, 2, Cj PAGE 1OF1 25D-3 25D-4 PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS THIS AGREEMENT (hereinafter "PSA"), entered into on , 2017, 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 MARIO AREVALO, an individual and RAQUEL AREVALO, an individual (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 1302 W. Saint Andrew Place, Santa Ana, CA 92704) (APN#: 408-332-01) 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: t. Conveyance by Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, within sixty (60) 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 nor -monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title except those exceptions shown in Paragraph 15 below. Seller hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as provided above, Seller further agrees that acceptance by City of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non -monetary, general or specific, and Including any and all leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of Seller to convey title as hereinabove provided. 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 Four Hundred Eighty Thousand and no/100 Dollars ($480,000.00) 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. 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. Exhibit 2 25D-5 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close within 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 (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, 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, Section 8 and Exhibit "B" of the General Provisions of this Agreement. 5, 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 the Revenue and Taxation Code of the State of California. Seiler shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section 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 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, the total sum of FOUR HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($480,000.00). 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 Seiler upon and after: (a) Conveyance of said real property by Seller to City as hereinabove provided; 25D-6 (b) Acceptance by City of a Grant Deed conveying said real property to City; (c) Delivery to City of the policy of title insurance as hereinabove provided; (d) Recordation of the Deed conveying said real property to City. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. a. No later than three (3) days after close of escrow, Seller shall have removed all merchandise, Inventory, equipment, personal property, and/or removable trade fixtures from the Property, and shall leave the Property in a broom swept condition. 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, unless a prior written agreement has been made with the City or its representatives. b. 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. Holdover Seller. At the sole discrepancy of the City, the City may allow the Seller to stay beyond the three days after the close of escrow as stated in Section 7a. In doing so, the Seller will become a Holdover Seller, and will be required to sign an interim rental agreement. Said rental agreement will provide the rental rate and terms of the lease. If the City or its agents fail to provide said rental agreement to Seller and Seller is still in occupancy of the Property after the three days after the close of escrow, then Seller is responsible to contact the City or its agents, to determine as to where to send their rent payment. Failure of City or its agents to present the interim rental agreement to Seller does not absolve the Seller from paying rent. 9. Rental and Occupancy By Seller. Seller agrees to execute a complete, current and correct statement of rentals (Seller Estoppel) on a form furnished to Seller by City and deliver same to City within fifteen (15) days hereof with copies of any written leases or rental agreements attached. All rents will be prorated as of the close of escrow on the basis of a 30-day month/365-day year consistent with that statement, subject to approval of City. Seller hereby agrees not to rent any units on the premises which are vacant as of the date that this agreement is executed by seller, or which may be vacated by present occupants prior to close of escrow, In return, the City agrees to reimburse seller lost rentals incurred by keeping units vacant through the close of escrow. Seller agrees that any and all Tenant Security Deposits pertaining to the subject property collected by or in the possession of Seller prior to the close of escrow shall be transferred to and become the property of City during escrow. Seller hereby warrants that the rental statement referred to shall include the terms of all rental agreements, tenancies, and leases (written, unwritten, recorded, or unrecorded) and Seller agrees to hold City harmless from all liability from any such leases or agreements. Seller also warrants that there are no oral or written leases on all or any portion of the subject property exceeding a period of one month. 25D-7 M 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. 11. Heirs, Assigns, Successors-in-loterest. 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. 12. 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. 13. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property. 14, 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 condemnatlon; loss or impairment of any "bonus value" attributable to any lease; damage to or loss of improvements pertaining to the realty; any right to repurchase, leaseback from Seller, or receive any financial gain from, 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 Cade of Civil Procedure sections 1245.245, 1263.025 and 1263.615: any other rights conferred upon Sellers pursuant to Code of Civil Procedure sections 1245.245 and 1263.615 and 1263.025; and 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. 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. 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. 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. This acknowledgment and release shall survive the Close of Escrow. 15, Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the Clty of Santa Ana 92701, County of Orange, State of California. The mailing address of the Seller is 1302 W. Saint Andrew Place, Santa Ana, CA 92704, 16. Exceptions. City agrees to accept title to said real property subject to the following: NONE. 25D-8 17. 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. 18, Hazardous Waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (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), (J) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 at sue. (42 U.S.C. S6903) or (A) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et sec. (42 U.S.C. S9601). 19. Compliance With Environmental Laws. To the best of Seller's knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, 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. 20. 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 (1) 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 (11) 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 25D-9 income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution, contamination, leek, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or up to the date this escrow shall close. Seller shall not be responsible for acts or omissions to act post close of this escrow. 21, Contingency. 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. 22. Modification and Amendment. This PSA may not be modified or amended except in writing signed by the Seller and City. 23. 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. 24. 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. 25. Governing Law. This PSA shall be governed by and construed in accordance with the laws of the State of California. 26. 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. 27. 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. 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. 29. 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. 30. 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. 31. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this PSA. 25D-10 IN WITNESS WHEREOF, the Parties hereto have executed this Purchase and Sale Agreement on the date and year First written above, an an CITY OF SANTA ANA: City]Buyer `Gerardo Mouet Acting City Manager ATTEST: Maria D. Huizar City Clerk APPROVED AS TO FORM: �i. Jo M. Funk Assistant City Attorney Fred Mousavipour Executive Director Public Works Agency Date:[= � , 2016 Date: `= 2016 Date: Date: Date: Date: 2016 2016 2016 25D-11 EXHIBIT "A" LEGAL DESCRIPTION Real properly in the City of Santa Ana, County of Orange, State of California, described as follows: LOT 90 OF TRACT NO. 2209, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 64, PAGES 25 AND 26, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. APN:408-332-01 25D-12 EXHIBIT "B" (First American) 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 limiting the generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10.00 per month. Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to any instructions must be in writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. 25D-13 25D-14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: INCLUSIONARY HOUSING AGREEMENT WITH HERITAGE VILLAGE OC, LLC TO RECEIVE $9,695,725.60 IN THREE PHASES (STRATEGIC PLAN NO. 5, 3B) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: U1 ". 0 ❑ 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 Clerk of the Council to execute an Inclusionary Housing Agreement with Heritage Village OC, LLC for The Heritage Village Apartments, in an amount not to exceed $9,695,725,60, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Housing Opportunity Ordinance ("Ordinance") encourages the development of affordable housing by requiring the inclusion of affordable units within developments that involve either an increase in the density otherwise available under applicable zoning and development standards; a change in land use designation from a zoning regulation that does not permit residential uses to one that does permit residential uses; or the conversion of rental units to condominium ownership. This ordinance applied to all projects entitled after November 2011. Developers have the option to pay an in -lieu fee based on the habitable square foot of the project to satisfy the Ordinance requirements. Heritage Village OC, LLC, developer of The Heritage Village Apartments project located at 2001 E. Dyer Road (Exhibit 1), will comply with the Housing Opportunity Ordinance by paying an in -lieu fee of $9.35 per habitable square foot in the total approximate amount of $9,695,725.60. The developer has been working with staff to complete the documents required by the Housing Opportunity Ordinance. The Inclusionary Housing Agreement (Exhibit 2) satisfies the inclusionary housing requirement of the project and is consistent with the standards set forth in the Ordinance. 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 25E-1 Inclusionary Housing Agreement— Heritage Village February 21, 2017 Page 2 efforts to preserve and improve the livability of Santa Ana neighborhoods), Strategy B (Ensure compliance with the City's Housing Opportunity Ordinance by requiring rental and ownership housing projects that meet specified criteria provide a minimum of 15% affordable units). FISCAL IMPACT It is anticipated that funds in the amount of $9,695,725.60 will be received in three phased payments according to the Project's Development Agreement, which are to be paid when the developer pulls building permits for the residential structure of each project phase. The dates below are only estimates. Project Phase Estimated Fee Estimated Payment Date Fiscal Year Phase 1 $2,700,000.00 April 2017 Phase 2 $3,250,000.00 August 2017 Phase 3 $3,745,725.60 December 2017 TOTAL $9,695,725.60 Upon receipt, the revenues will be deposited into the Inclusionary Housing Fund revenue account (no. 41718002-5 7896 ). Robert C. Cortez Deputy City Manager"`' City Manager's Office Exhibits: 1. Location Map 2. Inclusionary Housing Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Cam! �°k �4k Francisco Gutierrez Do Executive Director Finance & Management Services Agency 25E-2 EXHIBIT 1 THE HERITAGE PROJECT yl 1M St Andrew P1 a ESt Andmw R[ E5i AndmwP1 ' c ti > c 3 8. n' � v S T i4Y IlTN Al,+kb4 y $Y V$f[(UfiY? Al T r' N_ nahmrst P4 '' @AnahuYst pl F. gnaLurst Pl W S/titiYl3Ga6liv(: C 2 MirnerAvL EWVrrnei'Ave uv f Rom it Oe1h+RaiE'. b Now Ss k7 €(kfOalAve f:{enifol AVF " ,y`tR .�, W Gameml Ave E Admms St fl /alems St Qw Emmett 5i v GoniY Ave "� � Yaunca it b L v; WN Dyer Ad M. NN fl1", aiNagat" '4.yz 4 CF �P 9�N t Dver Rd :�sA,1 a � L Dyer fic{,��q �a N z°c �vY yC n ,�, o- E.Nvaq Ave E ABair Ave wile R 0 A Rork IN a `„^ t^amHllu Ava "P ECOW161r. Avn. 55 vtAa le, im q.' „S, f` W F:ail Ave ,x "'ram 4¢.01) b G < W AIPm? Avey. ^veC 't1VstlC+a..[hAfffiV% 4 1r{, 1( as. 2001 E. DYER STREET 25E-3 25E-4 EXHIBIT 2 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Attention: City Clerk To be recorded without fee. (Space Above This Line For Recorder's Use Only) (Government Cade, §§ 6103 and 27383) I;193Za TIVAiyil=1ki1119107a1-ki11It1*11144A THIS INCLUSIONARY HOUSING AGREEMENT is dated as of February 21, 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, and Heritage Village OC, LLC, a Delaware limited liability company ("Developer"). RECITALS A. The City's Housing Opportunity ("Ordinance") was originally adopted by the City Council on November 28, 2011 and is codified in Article XVIII.1 Section 41 — 1900 of the City's Municipal Code. The Ordinance was amended by the City Council on September 1, 2015 (Ordinance No. NS- 2881), and on October 6, 2015 (Ordinance No. NS-2885). B. The Developer is the fee owner of the Property located at 2001 E Dver Road, Santa Ana, California ("Property"). C. The Developer desires to, at the Developer's sole cost and expense, develop a one thousand two hundred and twenty one (1,221) unit rental apartment project on the Property ("Project"). D. On October 12, 2015, the Planning Commission recommended approval, with the City Council affirming the Commission's action and voted to adopt a resolution and ordinances approving the Project on February 3, 2016. Inclusionary Housing Agreement - In -Lieu Fee Payment Page 1 City of Santa Ana 25E-5 The Council actions included the certification of Final EIR No. 2015-01, Amendment Application No. 2014-4, Development Agreement No. 2015-3, General Plan Amendment No. 2015-3 and Vesting Tentative Tract Map No. 2015-3, which set forth the approvals for the Project. E. On February 29, 2016, the Program Director, acting on behalf of the City, approved an Inclusionary Housing Plan that was prepared by the Developer in accordance with the requirements imposed by the Ordinance and the Administrative Procedures Manual established by the City Council to implement the Ordinance requirements. F. This Inclusionary Housing Agreement, when fully executed by the City and the Developer and recorded, is intended to satisfy the requirement that the Developer enter into an Inclusionary Housing Agreement, as set forth in the Ordinance and the conditions to City Approvals. NOW, THEREFORE, in consideration of the mutual promises set forth in this Inclusionary Housing Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the City and the Developer, the Parties, agree as follows: DEFINITIONS OF TERMS The following words, terms and phrases are used in this Inclusionary Housing Agreement, as follows, unless the particular context of usage of a word, term or phrase requires another interpretation. Administrative Procedures means the regulations promulgated by the Executive Director pursuant to the Ordinance. Administrative Procedures Manual is the Affordable Ownership Housing Administrative Procedures Manual — Developer Requirements dated January 2015, which has been prepared by the City for the implementation and enforcement of the Ordinance. A copy of the Administrative Procedures Manual shall be maintained on file with the City, and shall be provided to each Developer of Inclusionary Units. City means the City of Santa Ana, California. Inclusionary Housing Agreement - In -Lieu Fee Payment Page 2 City of Santa Ana 25E-6 City Approvals are defined as the entitlement approvals and the Inclusionary Housing Plan that must be approved by the Program Director prior to the issuance of building permits for the Project. City Council means the City of Santa Ana City Council. Default means the failure of a Party to perform any action or covenant required by this Inclusionary Housing Agreement within the time period provided herein following notice and opportunity to cure, as set forth in Article 3 — Section I of this Inclusionary Housing Agreement. Developer means the developer of the Project. Effective Date means the date on which this Inclusionary Housing Agreement is approved and executed by appropriate authorities of the Developer and the City; and this Inclusionary Housing Agreement is delivered to the Developer. Executive Director is the Executive Director of the Community Development Agency of the City. The Executive Director, or designee, has the ultimate authority to evaluate appeals submitted in relation to the Administrative Procedures. Exhibits means the exhibits to this Inclusionary Housing Agreement, which are listed in Article 1 - Section V. Inclusionary Housing Fund means a separate fund of the City which is codified in Article XV111.1 Section 41-1909 of the City's Municipal Code. The fund was established for the specific purpose of providing the City with funds to assist in the development of housing that is affordable to low and moderate income households. The allowable uses of Inclusionary Housing Funds, and the related reporting are described in Attachment I of the Administrative Procedures Manual. Inclusionary Housing Plan means a plan submitted for approval to the Program Director that details the manner in which the Inclusionary Housing obligations will be fulfilled by the Project. The Inclusionary Housing Plan form is presented in Attachment B of the Administrative Procedures Manual, and also attached as Exhibit 3 to this Inclusionary Housing Agreement. In -Lieu Fee refers to a fee that may be paid by the Property Owner in specific circumstances in lieu of providing Inclusionary Units within a Project. These Inclusionary Housing Agreement - In -Lieu Fee Payment Page 3 City of Santa Ana 25E-7 circumstances are identified in Section II -A of the Administrative Procedures Manual. Ordinance means the Housing Opportunity Ordinance originally adopted by the City Council on November 28, 2011, and as amended by the City Council on September 1, 2015, in Ordinance No. NS-2881, and on October 6, 2015, in Ordinance No. NS-2885, which is codified in Article XVI11.1 Section 41-1900 et seq. of the City's Municipal Code. Party and Parties mean the City and the Developer as parties to this Inclusionary Housing Agreement. Program Director has the day-to-day authority for making determinations related to the Ordinance and Administrative Procedures Manual. The Program Director will be appointed by the Executive Director. Project means the multi -family housing project proposed to be developed on the Property at the Developer's sole cost and expense, as further described and defined in Recital C. Property means the real property, as shown on Exhibit 2 attached to this Inclusionary Housing Agreement, on which the Project is to be developed, for which the legal description is provided in Exhibit 1 to this Inclusionary, Housing Agreement, and as further described and defined in Recital B. Indusionary Housing Agreement - in -Lieu Fee Payment Page 4 City of Santa Ana 25E-8 ARTICLE 1 PARTIES; REPRESENTATIONS AND WARRANTIES; EFFECTIVE DATE; RECITALS; AND EXHIBITS Parties to this Inclusionary Housing Agreement I -A. City. The City is a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California. The address of the City, for the purposes of this Inclusionary Housing Agreement, is: City of Santa Ana Community Development Agency 20 Civic Center Plaza, M-26 Santa Ana, California 92701 Attention: Program Director Facsimile Number: (714) 647-6549 I-B. Developer. The Developer is a Delaware limited liability company. The principal office and address of the Developer, for the purposes of this Inclusionary Housing Agreement, is: Drew Colquitt Alliance Residential Company 450 Newport Center Drive, Suite 550 Newport Beach, CA 92660 Telephone Number: 949-706-8487 II. Developer Representations And Warranties The representations and warranties of the Developer contained in Article 1 — Section 11 shall be based upon the actual knowledge of the Developer as of the Effective Date, and are true and correct as of the Effective Date. The Developer's liability for misrepresentation or breach of warranty, representation Inclusionary Housing Agreement - In -Lieu Fee Payment Page 5 City of Santa Ana 25E-9 or covenant, wherever contained in this Inclusionary Housing Agreement, shall survive the execution and delivery of this Inclusionary Housing Agreement. The Developer hereby makes the following representations, covenants and warranties, and Developer acknowledges that the execution of this Inclusionary Housing Agreement by the City has been made in material reliance by the City on such covenants, representations and warranties: II -A. The Developer is a Delaware limited liability company, lawfully entitled to do business in the State of California and the City. The Developer has the legal right, power and authority to enter into this Inclusionary Housing Agreement and the instruments and documents referenced herein and to consummate the transaction contemplated hereby. The persons executing this Inclusionary Housing Agreement and the instruments referenced herein on behalf of the Developer hereby represent and warrant that such persons have the power, right and authority to bind the Developer. II-B. The Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Inclusionary Housing Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for the Developer's authorization to enter into this Inclusionary Housing Agreement. II-C. Neither the execution of this Inclusionary Housing Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument, or other obligation to which the Developer is a party or by which the Developer may be bound, or to the best of the Developer's knowledge, under any law, statute, ordinance, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to the Developer or to the Property. II-D. This Inclusionary Housing Agreement is, and all agreements, instruments and documents to be executed by the Developer pursuant to this Inclusionary Housing Agreement shall be duly executed by, and to the best of the Developer's knowledge, are or shall be valid and legally binding upon the Developer and enforceable in accordance with their respective terms. Inclusionary Housing Agreement - In -Lieu Fee Payment Page 6 City of Santa Ana 25E-10 III. Effective Date This Inclusionary Housing Agreement is dated February 21, 2017, for reference purposes only. This Inclusionary Housing Agreement shall not go into effect before the Effective Date. IV. Recitals The Recitals set forth above are true and correct. The Recitals are incorporated into this Inclusionary Housing Agreement in their entirety by this reference. 1���i7i11:7i1�31 The following is a list of the exhibits attached to this Inclusionary Housing Agreement. Each of the exhibits is incorporated by reference into the text of this Inclusionary Housing Agreement. Exhibit 1 Legal Description of Property Exhibit 2 Site Map Depicting Property and Zoning Designations Exhibit 3 Inclusionary Housing Plan Indusionary Housing Agreement - In -Lieu Fee Payment City of Santa Ana 25E-11 ARTICLE 2 INCLUSIONARY HOUSING COVENANTS Developer Compliance with the Ordinance The Developer acknowledges that the City has provided the Developer with copies of the Ordinance and the Administrative Procedures Manual. The Developer is familiar with the requirements of all the foregoing documents and shall ensure that the Project complies in all material respects with this Inclusionary Housing Agreement and the requirements set forth in all the foregoing documents. II. In -Lieu Fee Developer's payment of the in lieu fee shall be paid in phases consistent with the phases of development set forth in Section 5.8 of the Project's Development Agreement. The Developer shall pay the applicable in lieu fee for each phase of the Project, based on the habitable space within that phase of the Project, prior to the issuance of the first building permit for that phase of the Project. Specifically, the Developer will comply with the Housing Opportunity Ordinance by paying an in lieu fee of $9.35 per habitable square foot. The current estimate of the fee that will be paid for each phase and the total fee is indicated in the table below. The actual final in lieu fee amount for each phase will be determined at the time of payment for that phase based on the habitable square footage indicated on the final plans for that phase. Project Phase Estimated Fee Phase 1 $2,700,000 Phase 2 $3,250,000 Phase 3 $3,745,725.60 TOTAL $9,695,725.60 Indusionary Housing Agreement - In -Lieu Fee Payment Page 8 City of Santa Ana 25E-12 The timing and order of the Project's phasing schedule, including the timing for the corresponding payment of the In Lieu Fee, may only be modified if agreed to by both parties, as provided for in the Project's Development Agreement. Indusionary Housing Agreement - In -Lieu Fee Payment City of Santa Ana 25E-13 ARTICLE 3 DEFAULTS AND REMEDIES Default If either Party defaults with regard to any provision of this Inclusionary Housing Agreement, the non -defaulting Party shall serve written notice of such default upon the defaulting Party. If, after the service of written notice of such default, the defaulting Party does not cure such default within thirty (30) calendar days after service of the notice of default (or, if such cure reasonably takes longer than thirty (30) days, if such cure has not been commenced within the thirty (30) day period or is not diligently completed within a reasonable time, not to exceed an additional sixty (60) calendar days), the defaulting Party shall be in Default of the terms of this Inclusionary Housing Agreement, and shall be liable to the other Party for damages caused by such Default. Alternatively, the non -defaulting Party, at its option, may institute an action for specific performance of the terms of this Inclusionary Housing Agreement. II. Legal Actions In the event of a breach or potential breach of this Inclusionary Housing Agreement requirements, in addition to any other rights or remedies, either Party may institute legal action to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purposes of this Inclusionary Housing Agreement. II -A. The City's actions may include, but are not limited to, the following: The following legal actions: a. Actions to enforce compliance with this Inclusionary Housing Agreement requirements and to enjoin any actions by the Developer that violate this Inclusionary Housing Agreement requirements; b. Actions to disapprove, revoke or suspend any permit, including a Building Permit, Certificate of Occupancy or other discretionary Induslonary Housing Agreement - In -Lieu Fee Payment Page 10 City of Santa Ana 25E-14 approval applicable to the phase of the Project that is alleged to be in Default of this Inclusionary Housing Agreement; C. Injunctive relief and damages; and d. Civil citations with monetary penalties for violations of the Inclusionary Housing Agreement. 2. All such restitution shall be made to the City. Any funds received by the City under this provision of this Inclusionary Housing Agreement shall be placed in the City's Inclusionary Housing Fund. 3. The City's actions set forth in this Article 3, Section 11-A shall be taken only with respect to the Project Phase(s) that is/are alleged to be in Default. The City may not take action against Project Phase(s) that have completed its/their respective inclusionary housing obligation(s) through the timely tendering of payment of the In Lieu Fee for the Project Phase(s). II-B. The laws of the State of California shall govern the interpretation and enforcement of this Inclusionary Housing Agreement. II-C. In the event that any legal action is commenced by the Developer against the City, service of process on the City shall be made by personal service upon the Clerk of the City Council, or in such other manner as may be provided by law. II-D. In the event that any legal action is commenced by the City against the Developer, service of process shall be made by personal service on the Developer's designated agent at such address as may be specified in written notice to the City, or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. III. Rights and Remedies are Cumulative The rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party. Indusionary Housing Agreement - In -Lieu Fee Payment Page 11 City of Santa Ana 25E-15 ARTICLE 4 GENERAL PROVISIONS Notices, Demands and Communications Between the Parties Any and all notices, demands or communications submitted by any Party to another Party pursuant to, or required by, this Inclusionary Housing Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the City and Developer, as applicable, as designated in Article 1 — Section I of this Inclusionary Housing Agreement. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time -to -time designate as provided in this Section. Any notice, demand or communication shall be deemed to be received by the addressee, on the day that it is personally delivered, if dispatched by messenger, or two (2) calendar days after it is placed in the United States mail. In addition to the submission of notices, demands or communications to the Parties via United States mail, copies of all notices shall also be delivered by facsimile to the facsimile numbers designated in Article 1 — Section I. II. Conflict of Interest No council member, official, contractor, consultant, attorney or employee of the City having any conflict of interest, direct or indirect, related to this Inclusionary Housing Agreement, or in the development of the Property, shall participate in any decision relating to this Inclusionary Housing Agreement. The Parties represent and warrant that they do not have knowledge of any such conflict of interest. III. Non -liability of City or City Officials and Employees No council member, official, contractor, consultant, attorney or employee of the City shall be personally liable to the Developer, any voluntary or involuntary successors and assignees, or any lender or other party holding any interest in the Property, in the event of any default or breach by the City, or for any amount which may become due to the Developer or to its successors or assignees, or on any obligations arising under this Inclusionary Housing Agreement. Inclusionary Housing Agreement - In -Lieu Fee Payment Page 12 City of Santa Ana 25E-16 I1��rii�lailiTftC�FitM-1 The Developer agrees to indemnify and hold the City, and their officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any negligent or wrongful act or omission of the Developer in performing its obligations hereunder. The City agrees to indemnify and hold the Developer and its officers, employees and agents, harmless from and against all damages, judgments, costs expenses and fees arising from or related to any negligent or wrongful act or omission of the City in performing its obligations hereunder. V. No Waiver Failure to insist upon strict compliance with any of the terms, covenants, conditions and restrictions hereof on any one occasion shall not be deemed a waiver of such term, covenant, condition or restriction. Any waiver or relinquishment of rights or powers hereunder at any one time or more times shall not be deemed a waiver or relinquishment of such other rights or powers at any other time or times. VI. Attorneys' Fees and Costs If either Party hereto files any action, or brings any action or proceeding against the other arising out this Inclusionary Housing Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs. The recovery shall be treated as an element of its costs of the suit, and not as damages. The amount of the recovery shall be fixed by the court in such action or proceeding, or in a separate action or proceeding brought to recover such attorneys' fees and costs. VII. Jurisdiction and Venue Any legal action or proceeding concerning this Inclusionary Housing Agreement shall be filed and prosecuted in the appropriate State of California court in Orange County, California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The City and the Developer each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including without implied limitation, federal district court due to any of the following: Indusionary Housing Agreement - In -Lieu Fee Payment Page 13 City of Santa Ana 25E-17 Any diversity of citizenship between the City and the Developer; or 2. The fact that the City is a party to such action or proceeding; or 3. That a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Developer and the City specifically waive any rights provided to it pursuant to California Code of Civil Procedure 394. The Developer acknowledges that the provisions of this Article 3 — Section VII are material consideration to the City for its entry into this Inclusionary Housing Agreement, in that the City will avoid the potential cost, expense and inconvenience of litigating in a distant forum. Vill. Successors and Assigns This Inclusionary Housing Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. IX. No Third Party Beneficiaries The performance of the City's and the Developer's respective obligations under this Inclusionary Housing Agreement are not intended to benefit any party other than the City or the Developer, except as expressly provided otherwise herein. No person or entity not a signatory to this Inclusionary Housing Agreement shall have any rights or causes of action against any Party to this Inclusionary Housing Agreement as a result of that Party's performance or non-performance under this Inclusionary Housing Agreement, or for the enforcement of any provisions of this Agreement, except as expressly provided otherwise herein. X. Entire Agreement This Inclusionary Housing Agreement integrates all of the terms and conditions mentioned herein or incidental hereto. This Inclusionary Housing Agreement supersedes all negotiations or previous agreement between the Parties with respect to all or any portion of the Property and the Project's compliance with its inclusionary housing obligations as specifically set forth herein. Inclusionary Housing Agreement - In -Lieu Fee Payment Page 14 City of Santa Ana 25E-18 XI. Recordation The Developer and the City agree to permit recordation of this Inclusionary Housing Agreement, against the Property in the Office of the County Recorder of Orange County, California. The legal description for the Property is provided in Exhibit 1 to this Inclusionary Housing Agreement. XII. Termination Except as set forth elsewhere, this Inclusionary Housing Agreement shall be terminated after Developer's payment of all required in -lieu fees to City. Upon the termination of this Inclusionary Housing Agreement, following Developer's tender and City's receipt of the final inclusionary housing In Lieu Fee payment for the final Project phase, the Developer shall have no further obligations or liability hereunder. The City and the Developer agree to promptly execute, acknowledge and deliver for recordation any documents that may be necessary to remove this Inclusionary Housing Agreement as encumbrance against title to any portion of the Property. Inclusionary Housing Agreement - In -Lieu Fee Payment Page 15 City of Santa Ana 25E-19 IN WITNESS WHEREOF, the Parties hereto have duty executed this Inclusionary Housing Agreement as of the dates set forth below. SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT ATTEST: Maria Huizar, Clerk of the Council CITY: CITY OF SANTA ANA A California Charter City and Municipal Corporation IN Name: Its: APPROVED AS TO LEGAL FORM: RECOMMENDED FOR APPROVAL: In ROBERT C. CORTEZ Deputy City Manager Indusionary Housing Agreement - In -Lieu Fee Payment Page 16 City of Santa Ana 25E-20 SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT HERITAGE VILLAGE OC, LLC: A Delaware limited liability company L0 Name: Its: Date: 0 Name: Its: Date: Indusionary Housing Agreement - In -Lieu Fee Payment Page 17 City of Santa Ana 25E-21 EXHIBIT 1 I noluslonary Housing Agreom ant— In -Lieu Fee Payment My of Santa Ana 25E-22 EXHIBIT A. u LEGAL DESMIPT10 P.I&CaT, O, At SH01IR OH BlFI1aR "a.z' A'H:4:NEt ro LIT W1p AWI7idl6iif 97-n'1! RE:nROtp PIRLFC 11, ""a dE "I'MUM"47 IU), uN-U011 OF CFFIOAI. KI M); OF 6IIAm,E clr;err, RALIFrmwA. k'ACFYr "I FOUND CnllVE1R0 TO III GT'( CF Z,rj,A pH.l O/ GPAIT OUD''RWOROCO V111E Id. 4OIn At RISTI:OLor N4 is 1pOV]'!dO7]) pM CkP141,1u fiECOP.Ob. lxOEORIIG ALL OIL „ Ul. FIRM, .N@IERALS, HOTFRAL PI.YIr0, HARINIL OAS AI IA 1110 01111 )'IORMAII II2 AY WHATSOEVER WHO SNSYN Ti MAt EF 'Ali OP. 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I 25E-23 EXHIBIT 2 SITE MAP DEPICTING PROPERTY AND ZONING DESIGNATIONS Ind uslonary Housing Agreement —In -Lieu Fee Payment My of Santa Ana 25E-24 »Hale 25E- 5 EXHIBIT 3 INCLUSI®NARY HOUSING PLAN Incluslonary Housing Agreement — In -Lieu Fee Payment City of Santa Ana 25E-26 Planning and Building Agency 1 Planning Division I 20 0Ivic center Plaza P.O. Bore 1988 (M.20) r, III Santa Ana, CA 92702 (714)647.5804 wwvr.aanta-ana.arg INCLUSIONARY HOUSING PLAN OWNERIAPPLICANT INFORMATION Legal Owner Heritage Villnup OC I T r -� Full name or Pa san, FUm or CorpgraGon 74 •--425 --2--8-5-1 �r 1943 ,Port Chelsea Piece,Newport Beach,CA 92660 _ Area Code Phone Numbe- Malting Address Applicant Ilerlta e Villa e OC III Area. Coda Fex Numh�--- yr'--'� Full name or Pnrsan, Firm or corporation L -.-4'^� 423.28.^-, 5--- 1 1,945 Port Chelsea Place, NOWPOrt Beach,CA 92660 .,._._,V Area Coda Phone Number Mailing Flddress ""�"'^^^----•-------- .�--..� —Fax Area Code Fax Numb- Code ""`"`— ^- Contact Person Pam Sapetto Sap etto Real Estate Solutions Full name oPParaon, run or CCorpporatloli "—"'"'"' P'sapetCo( sapetYoreetlestate com 18662 NlacArthur Blvd, Suite 200, Irvine, Ca 92612 2mail address Mailing Address 949 25.2-084.1 C 714, ) 815-77'71 Area Cade Phone Number Aran Coda Mobile phone Number Area Code Fex Numbe�'�� er "-"-"^- PROJECT DESCRIPTION Project Address: 2001 'A, Deer Rd, Santa Ana, CA Assessor Parcel Number(s): 430-211-13, 430-221-01, 430-221-02�� Total number of units proposed: --1221 Number of Rental Units; 1221 Number of For Sale units: 0 Number of f S% Inclusionary obligation: Identify the gross livable area of the proposed project (including private balconies, decks and patios). 1,036,9-Z6 square feet Will the project be constructed in phases? X yes No Is a density bonus being requested? -- yes ^ X No l CITY APPROVALS (11 applicable) p ' INCLUSIONARY HOUSING PLAN NO, j APPR9v]= r] DENY Data:—a�ya signature:,�k`� S:PlanninaiClarica4Cnwtler r-orins1Fl00applluation Page 7 of 4 I/1 a 25E-27 HOUSING ALTERNATIVES Select the applicable allernatives to indicate how the project will comply with the inclusionary housing requirement: On -site construction of inclusionary units XT in -lieu fee payment for entire obligation in -lieu fee payment for fractional unit _-_ Land dedication Note: for development projects with more than 20 units requesting In -lieu fee payment to fulfill their inclusionary obligation, "substantial evidenre" that the cost of providing inclusionary units on site would substantlally exceed the amount of the applicable in -lieu fee Is to be provided with this application. Please complete the following table(s) as it applies to your project proposal: Pr0676�e�1 t�enta! Flouaing Pro acts: Unit size Number of Number of Number of Very -Low Number of (square Market Rate Low Income income Bedrooms feet) Units Units Units Studio T587 327 748 5p1 112t 35) 3 1434 334 T 4 849 1 1221 Total Percent Number of Total of Units Units f If the Calculation of the number ofrequirdd incluslonary housing units results Ina fraction, the developer has the Option to (a) provide an additlonat moluslenary housing unit Cr (b) pay an In -Lieu 1=ee equal to the percentage reprosenled by the A'aotionel inclusionary houeing unit multiplied by file applicable Imt.leu Fee e:Plnnnina\Clerical-Counter FonoelHOOuppllcetlan Page 2 of 4 vry 25E-28 Promosed CJdynorshla Flausinn P erects; Unit Size I Number of ! Number of I Total Number of (square Market F2ate I Moderate Number of Percent of Bedrooms Feet) Units inr` m. I roil _ _ Required Exhibits to the Inclusionary Housing Plan A. ❑ Narrative description of the entire project; E3. ❑ Site plan that depicts the entire project (minimum 11" x 17" ); C. ❑ Depiction of the location of the inciuslonary housing units; and D. ❑ If applicable, a phasing plan that provides for the proportionate number of the total inclusionary housing unit requirement to be built within each phase of the project, E. ❑ If applicable, provide the In -Lieu Calculation Summary for the project. S:PlanninA�ChariaalCounlzr FormslFippC.Nplicatiun P2ip�" Of 4 Ills 25E-29 Property OWNER'S AFFIDAVIT application or have been empowered to sign as the property ownI hereby certify that I am the legally authorized owner of all property involved in this er on behalf of a corporation, partnership, business, etc., as evidenced by separate instrument attached herewith, I hereby grant to the applicant submitting this form full power to sign all documents related to this application, Including any conditions or litigation measures as may be deemed necessary. I declare under penalty of perjury that the foregoing is true and correct. Executed on (Date) 11/20/15 at Los An �es ,California Property Owner's Signature -4 Property Owner's Printed Name RY111 Ogulnick APPLICANT'S AFFIDAVIT I hereby certify that the statements furnished above and in the attached exhibits represent the data and information required for this initial evaluation and that the facts, statements and information presented are true and correct to the best of my knowledge and belief. Further, should the stated information be found false or Insufficient, I agree to the return of this form for appropriate revisions, understanding the City of Santa Ana cannot process this form until all applicable information is corrected or provided by the applicant. I hereby certify that I have been legally authorized by the property owner to present this application and to sign on behalf of all documents related to this application, Including any conditions or litigation measures as may be deemed necessary, Note: When the applicant is a corporation, partnership, business, etc., a separate document verifying the authorization to sign for such applicant is required, I declare under penalty of perjury that the foregoing is true and correct Executed on (Date) _ _ at _ , California Applicant's Signature Applicant's Printed Name S:planniny\Clerical-Cmuiler FormslHOOappliaallon Page 4 of 1115 25E-30 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: AGREEMENT WITH COMMUNITY SENIORSERV INC. FOR SENIOR MEALS PROGRAMS {STRATEGIC PLAN NO. 5, 6E) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on to' 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 Community SeniorServ, Inc. for Senior Meals Programs in the amount of $15,000 for the period February 21, 2017 through June 30, 2017, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION Community SeniorServ, Inc. provides two programs which they have labeled, Meals on Wheels and Senior Lunch. Additional details about each of their programs are provided below. The Meals on Wheels program prepares and delivers three meals daily directly to the homes of homebound, frail, and socially isolated seniors in the City. A registered dietician plans the meals to assure 100% of the U. S. Nutritional Recommended Daily Allowance - consisting of breakfast, a cold lunch, and a frozen dinner. In addition to meals, clients benefit from daily contact with delivery staff as well as the calls and/or visits from case workers who regularly check on their well-being. The Senior Lunch Program will be offered at three sites in Santa Ana (Santa Ana Senior Center, Southwest Senior Center, and Vietnamese Community Center) to help alleviate poor nutrition among the elderly population, especially prevalent among those who live alone and/or on a limited income. This nutrition program seeks to enhance the physical and mental well-being of the elderly population by: • Encouraging a sense of dignity; • Providing stimulating activities and volunteer opportunities; and • Augmenting participants' financial resources by providing donation -based meals. 25F-1 Agreement with Community SeniorServ, Inc. February 21, 2017 Page 2 The Senior Lunch Program meals are also planned and certified by a dietician to meet one third of each person's daily nutritional needs based on Food and Drug Administration (FDA) guidelines. As part of the fiscal year 2016-2017 budget process, $15,000 in general fund monies were allocated for the purpose of assisting Community SeniorServ, Inc. with program costs to provide meals to Santa Ana residents. The annual food cost for Santa Ana for the two programs is approximately $187,000. 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 E (Expand Senior Center programming to provide greater enrichment and explore activities in art, culture and health). FISCAL IMPACT Funds are available in the following account for the specified year: Unit 0111 Jeannie Jurado Acting Executive Director Parks, Recreation and Community Services Agency EXHIBIT: 1. Agreement FY 16/17 111 APPROVED AS TO FUNDS AND ACCOUNT: Francisco Gutierrez Executive Director Finance and Management Services Agency 25F-2 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND COMMUNITY SENIORSERV, INC. FOR THE PROVISION OF HOME DELIVERED MEALS PROGRAM SERVICES (Non-CDBG Funds) THIS AGREEMENT is hereby made and entered into this 21' day of February, 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 Community SeniorServ, hie., a California nonprofit corporation ("Provider"). RECITALS A. The City desires to retain Provider to participate in the Home Delivered and Congregate Meals Program in the City. B. Provider is currently providing such services to the City as a subrecipient of federal Community Development Block Grant Funds that were received by the City. The City desires to provide additional direct funding to Provider using City funds. C. In undertaking the performance of this Agreement, Provider represents that it is knowledgeable in its field and that any services performed by Provider under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional 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 Provider shall perform those services as set forth in the Exhibit A and incorporated by reference to this Agreement. 2. COMPENSATION a. City agrees to pay, and Provider agrees to accept as total payment for its services, the sum of $15,000.00. The total sum to be expended under this Agreement shall not exceed this amount during the term of this Agreement. b. Payment by City shall be made following full execution of this Agreement by the parties. 3. TERM The term of this Agreement shall commence on the date first written above and terminate on June 30, 2017, unless terminated earlier in accordance with Section 13, below. Page 1 of 8 ZIt 4. INDEPENDENT CONTRACTOR Provider 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 Provider performs the services which are the subject matter of this Agreement; however, the services to be provided by Provider shall be provided in a manner consistent with all applicable standards and regulations governing such services. Provider shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to its employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Provider shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Provider shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Provider's negligent 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 and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insured provisions. b. 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 California State law, Provider, if Provider 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, Provider agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Provider 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 Provider pursuant to this section: Page 2 of 8 25F 4 (i) Provider shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City. (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) Provider shall supply City with fully executed additional insured endorsement. f. If Provider fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Such termination shall not affect Provider's right to be paid for its time and materials expended prior to notification of termination. Provider 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 Provider agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Providers, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Provider 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 Provider 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. Notwithstanding the foregoing, to the extent Provider's services are subject to Civil Code §2782.8, the above indemnity shall be limited, to the extent required by Civil Code §2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Provider. Page 3 of 8 Zyl F 6 f 1 _J Provider shall keep records and invoices in connection with the work to be performed under this Agreement. Provider 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 Provider under this Agreement. All such records and invoices shall be clearly identifiable. Provider 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. Provider 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 Provider under this Agreement. 8. CONFIDENTIALITY If Provider received from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Provider 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 Provider disclosed in a publicly available source; (c) is in rightful possession of the Provider and disclosed without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Provider without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Provider covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: City of Santa Ana Community Development Agency (M-25) 20 Civic Center Plaza P.O, Box 1988 Page 4 of 8 2��'�t6 Santa Ana, California 92702-1988 With copy to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 26 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 Fax (714)571-4211 To Provider: Community SeniorServ, Inc. 1200 N. Knollwood Circle Anaheim, CA 92801 Fax (714) 220-1374 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Provider regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail and will serve to fully supersede existing Agreement. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Provider. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms or conditions hereof, shall not bind or obligate Provider nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any parties which are not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Provider, Provider 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 Providers retained by City. Page 5 of 8 13. TERMINATION This Agreement may be terminated by the City with thirty (30) days written notice of termination to the Provider. a. As a condition of such payment, the City may require Provider to deliver to the City all the 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 Provider consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 14. NON DISCRIMINATION Provider shall not discriminate because of race, color, creed, relation, 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 any activities under this Agreement. Provider affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Provider 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 Sates, the State of California, the City of Santa Ana and all other governmental agencies. Provider shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature 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 Page 6 of 8 attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D, HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney irk BV JOHN M. FUNK Assistant City Attorney RECOMMENDED FOR APPROVAL: Acting Executive Director of Parks, Recreation and Community Services Agency CITY OF SANTA ANA GERALDO MOUET Acting City Manager COMMUNITY SENIORSERV, INC. By: Name: Title: Page 7 of 8 f It6 EXHIBIT A Community SeniorSery Inc. 1200 N. Knollwood Circle Anaheim, CA 92801 Community SeniorSery will provide: Home Delivered Meal Program: Participants in the Home Delivered Meals program will receive nutritious meals delivered to their home and case management services. Meals will be delivered by paid and volunteer drivers. Eligibility and case management services will be provided by CSS Case Managers. Participants will also have access to other services at no charge including in -home services, respite services, home safety equipment, and other resources. Congregate Lunch Program: Participants in the Congregate Lunch program will be provided with a nutritional lunch at 3 sites in Santa Ana: Southwest Senior Center Santa Ana Senior Center Vietnamese Community Center Page 8 of 8 2991 b REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED AGREEMENT WITH NAKA ENGINEERING ❑ As Recommended CONTRACTORS FOR RESTROOM ❑ As Amended El Ordinance on Reading STRUCTURE REPAIRS AT ANGELS PARK n 2 ❑ Ordinance on tl Reading (STRATEGIC PLAN NO. 6, 1B) ❑ Implementing Resolution ❑ Set Public Hearing For h ClIVNIANAGER RECOMMENDED ACTION CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Naka Engineering Contractors to provide restroom structure repairs at Angels Park for an amount not to exceed $50,000, which includes a contingency of $5,520 for a term from February 21, 2017 through December 31, 2017 or completion of the project, whichever is sooner, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The City of Santa Ana solicited proposals from qualified companies to provide restroom structure repairs at Angels Park located at 914 W. Third Street, Santa Ana, CA (Southwest corner of Third Street and Flower Street). The scope of the project includes: • Remove and replace wall • Remove wood siding and replace with stucco • Replace damaged wood • Apply rolled/torched-down roofing • Painting • Perform lead -based paint testing and abatement • Perform asbestos testing and abatement The contractor will be responsible for obtaining necessary permits. The City received three proposals. An evaluation committee reviewed ranked the proposals. The results of the evaluation are below. Company Score Ranking Allied ECorp 127 3 Naka Engineering Contractors 270 1 25G-1 Agreement with DMS Facility Services January 17, 2017 Page 2 OCC Builders z12 2 The City proposes to enter into an agreement with Naka Engineering Contractors. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #6 - Community Facilities & Infrastructure, Objective #1 (Establish and maintain a Community Investment Plan for all City assets), Strategy B (Equitably maintain existing streets and associated assets in a state of good repair so they are clean, safe and aesthetically pleasing for all users). FISCAL IMPACT Funds are available in the following account for the specified years of the initial term: Accounting Unit FY 16/17 PRCSA Special Projects (no. 05013018-66200) $50,000 Jeannie Jurado Acting Executive Director Parks, Recreation and Community Services Agency EXHIBIT: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNT: Franbi6co Gutierrez Executive Director ZV Finance and Management Services Agency 25G-2 CONSULTANT AGREEMENT THIS AGREEMENT made and entered into this 2151 day of February 2017, by and between NAKA ENGINEERING CONTRACTORS, INC., a California corporation (hereinafter "Consultant"), and the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of engineering and structural repairs. 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 terns and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall provide engineering and structural repair services at prevailing wages at Angels Park as set forth in Exhibit A and A-1 (the "Project"), attached hereto and incorporated herein by this reference. Consultant shall deliver to City all work product resulting from the services provided. Said work product shall be submitted in a hard copy and in a form compatible with City's computer system, as agreed between the Executive Director and Consultant. In regard to copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings and computer programs, Consultant agrees and shall ensure that all of Consultant's affected officers, employees, agents, contractors, and volunteer workers agree that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty - free, nonexclusive, irrevocable license throughout the world for govermnental purposes to disclose, publish, translate, reproduce, and use such materials. LOV�S 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept Fifty Thousand Dollars ($50,000.00) as payment for its services asset forth in Exhibit A. Said compensation includes a contingency of $5,520.00 only to be used after written request by Consultant toExecutive Director setting forth the circumstances substantiating the need to use the contingency amount. 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 elate first written above and terminate on December 31, 2017, or completion of the Project, whichever is earlier, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be ail independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work wider 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 eormnercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amorist of $1,000,000 per occurrence, and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional 2 20U-4 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. Worker's Compensation Insurance. hi accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim,, subject to $1,000,000.00 aggregate. d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled. or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e, If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not 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. ,�A11]BIt71►11NO EIM Consultant agrees to and shall indetnify 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 3 :t t 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. 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 infonnation that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Facsimile: (714) 647-6956 Copies to: Executive Director of Parks, Recreation & Community Services Agency City of Santa Ana. 20 Civic Center Plaza (M-75) 4 296-`6 P.O. Box 1988 Santa Ana, California 92702 Facsimile: (714) 571-4221 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Facsimile: (714) 647.6515 To Consultant: Naka Engineering Contractors, Inc. Nader Alex 1Cazemi, Principal Engineer, CEO P.O. Box 54442 Irvine, California 92619 Phone: (949)295-7578 Facsimile: (949) 679-0600 A party may change its address by giving notice in writing to the other party. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above, If sent by telefacsimile, connnunieation 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'frarnes, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate either 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. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assigrunent, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement 5 :ft_ / shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless ,prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. Y6 2�V 16. MISCELLANEOUS PROVISIONS a, Each undersigned represents and warrants that its signature hereitibelow has the power, authority and right to bind their respective patties to each of the terms of this Agreement, and shall indemnify City frilly, 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 ftilly set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM; SONIA R. CARVALHO City Attorney Lisa Storck Assistant City Attorney RECOMMEND APPROVAL: CITY OF SANTA ANA GERARDO MOUET Acting City Manager NAKA ENGINEERING CONTRACTORS Nader Alex Kazemi, M.S. Chief Executive Officer Jeannie Jurado, Acting Exec. Director Tax ID# Parks, Recreation & Community Services Agency IMA EXHIBIT A SCOPE OF WORK Angels Community Park 914 West Third Street Santa Ana, CA 92702 For this location the following should be listed for a bid to be considered responsible and responsive for restroom structural repairs at prevailing wages at Angels Community Park restroom: 1. Remove and replace 4" stud wall 44'-0"x6'-8". Apply stucco on both sides. Refer to Drawing A-2 and A-3. 2. Replace wood siding with stucco. Refer to Drawing A-2 and A-3. 3. Replace any damaged wood members. 4. Apply rolled/torched-down roofing. 6. Painting of the stucco, doors and screens. 6. Protect in place existing plumbing equipment. 7. Protect in place existing electrical equipment. 8. Protect in place existing doors. 9. Perform lead -based paint testing and any necessary abatement. 10. Perform asbestos testing and any necessary abatement. 11.Install temporary fence around work site. 12. Maintain work area, equipment and materials free of graffiti. 13.Obtain necessary permits, if required. 8 26 9 m 25 ,F,AUibiLj� -12 t ^ z \� � �\\ \\ \ � >� IM \\} \ » - � - � - - 2W4 2 25G-14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: AGREEMENTS WITH J&G INDUSTRIES, NATIONAL DEMOLITION CONTRACTORS, AND INTERIOR DEMOLITION, INC., FOR DEMOLITION SERVICES FOR CAPITAL IMPROVEMENT PROJECTS (NON -GENERAL FUND) (STRATEGIC PLAN NO. 6, 1C) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: FIT90TWIWO, CI As Recommended As Amended ❑ Ordinance on 1" Reading 0 Ordinance on 2ntl Reading ❑ Implementing Resolution ® Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute agreements with J&G Industries, National Demolition Contractors, and Interior Demolition, Inc., to provide on -call demolition services for a three-year term beginning February 21, 2017, and expiring February 20, 2020, with provisions for one, two-year renewal option exercisable by the City Manager and City Attorney, in an aggregate amount not to exceed $2,200,000, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION During the last two years, the escalation of property acquisitions for street improvements has led to an exhaustion of the demolition contracts the City has in place. The City has received renewed funding for right-of-way activities, which includes demolition costs for three segments of the Bristol Street Improvement Project. Approval of this recommended action will provide continuity in proceeding with demolition services after property acquisition. Staff has followed the established procedures to ensure there is access to qualified demolition contractors for the Bristol Street Improvement Project, as well as other projects approved in the City's Capital Improvement Programs. On -call agreements are most appropriate considering the unknown timing and exact scope of services needed. On January 10, 2017, the Public Works Agency released a Request for Proposals (RFP) to qualified firms to provide on -call demolition services. The RFPs were also posted on the City website. A total of 4 proposals were received and evaluated by a review committee from the Public Works Agency. Each proposal was rated according to its qualifications, experience, capacity to perform the required work, and pricing data. The following list is a summary of the firms and their respective scores: 25H-1 On -Call Agreements for CIP Demolition Services February 21, 2017 Page 2 NAME OF FIRM J&G Industries National Demolition Contractors Interior Demolition Inc. American Wrecking Klondike Construction Services Inc. RANKING 91 85 84 76 68 Based on the ratings and experience, staff recommends that the top three contractors be retained for on -call demolition services. Each demolition service would be initiated by a work order request made available to the three contractors for review and submission of a detailed price proposal. 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 C (invest resources and technology to extend the service life of existing infrastructure to protect the City's investment and support a high quality of life standard). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Bristol Corridor Street Improvements Project (Account No. 05917661- 66220) for expenditure as follows: / 1A Frid Mou avipour Executive Director Public Works Agency FM/EWG/JG/ML Fiscal Year Amount 2016-2017 $700,000 2017-2018 $1,000,000 2018-2019 $350,000 2019-2020 $150,000 APPROVED AS TO FUNDS & ACCOUNTS: FVandj&o Gutierrez Executive Director Finance & Management Services Agency Exhibits: 1. Agreement with J&G Industries 2. Agreement with National Demolition Contractors 2. lrk-j5or Demo�`Alc'n I qhc 25H-2 EXHIBIT 1 AGREEMENT TO PROVIDE DEMOLITION SERVICES ON AN ON -CALL BASIS THIS AGREEMENT is made and entered into this 21" day of February, 2017 by and between J&G INDUSTRIES, INC. ("Contractor"), and the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing tinder the Constitution and laws of the State of California ("City"). RECITALS A. On January 10, 2017, the City issued Request for Proposal No. 17-004, by which it sought Contractors to provide On -Call Demolition Services for the City of Santa Ana Public Works Agency, B. Contractor submitted a responsive proposal that was among those selected by the City. Contractor represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 17-004 and attached as Exhibit A. 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 On an as needed basis, and at the discretion of City, Contractor shall perform the services that are described in Exhibit A. Contractor's proposal is incorporated by reference as though fully set forth herein. When the need for services arises, City may initiate services through use of a task order issued to Contractor. 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Contractor under this Agreement. Contractor shall be paid only for actual services performed under this Agreement at the rates and charges for the sample project site identified in Exhibit B. Contractor is one of three Contractors selected to provide demolition services on an as needed basis under RFP No. 17-004. The total funds for all services provided under RFP No. 17-004 is a collective amount not to exceed $2,200,000. 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 Pa e 1 of 8 29H-3 performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on February 20, 2020, unless terminated earlier in accordance with Section 16, below. The term of this Agreement may be extended for one additional (2) year period, upon a writing executed by the City Manager and the City Attorney. 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 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. 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 Contractor under this Agreement ("Documents & Data"). Contractor 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. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor 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 proposes intended by this Agreement shall be at City's sole risk. 6. INSURANCE Prior to undertaking performance of work under 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 Page 2 of 8 25H-4 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 with respect to insurance or self-insurance programs maintained by the CITY; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor 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, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Contractor 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. C. 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 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 cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. (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 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 Pa e 3 of 8 28H-5 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. 7. INDEMNIFICATION Contractor agrees to defend, 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 negligent operations of the Contractor 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 Contractor 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. 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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Contractor to the City pursuant to this Agreement. 9. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor 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 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 Page 4 of 8 25H-6 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. 10. CONFIDENTIALITY If Contractor receives from the City information which due 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 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 Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without 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. 11. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interest 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 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 2p e5of8 8H-7 To Consultant: Fax 714-647-5635 J&G Industries, Inc. 18627 Brookhurst Street, PMB 302 Fountain Valley, CA 92708 Fax 714-903-2003 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 Contractor regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor 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 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. 15. WAIVER No waiver of 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 or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not Page 6 of 8 25H-8 similar, nor shall any waiver constitute a continuing waiver unless the writing so specifics. 16. TERMINATION This Agreement may be terminated by the City upon thirty (30) 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, subject to the following conditions: a. As a condition of such payment, the Executive Director 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. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 17. NON-DISCRIMINATION Contractor shall not discriminate because of race, color, creed, relation, 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. 18. 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. 19. 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 permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. Pa e7of8 26H-9 20. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Qt4 _.._ Jt7HN M. FUNK Assistant City Attorney RECOMMENDED FOR APPROVAL: FRED MOUSAVIPOUR Executive Director Public Works Agency 1 AY . - , GERARDO MOUET Acting City Manager J&G INDUSTRIES, INC. NAME: TITLE: Page 8 of 8 25H-10 EXHIBIT A SCOPE OF WORK Introduction and Backeround: The City of Santa Ana is issuing this Request for Proposals (RFP) to seek a qualified Demolition contractor(s) to provide demolition, including asbestos abatement and hazardous materials removals, services for the City of Santa Ana on an as -needed basis. From the proposals received, it is the City's goal to select one or more firms to enter into agreement(s). Approximately 50 residential and commercial properties along Bristol Street (Warner to St. Andrew Place and Civic Center to 17th Street) will need to be demolished by end of 2017. The total demolition services needed for this On -call contract(s) is valued at approximately $2,200,000. The total amount to be expended shall be shared among all contractors providing these services. Scope of Services: Contractor is responsible for the payment of all applicable permits required to conduct the below scope of services. The On -Call contractor shall respond with a task order quote within 5 working days of receiving the request for a task order quote. Selection of a contractor to perform each task order shall consider past work completion performance. Demolition: Contractor is responsible for demolishing and disposal/recycling of all improvements, including but not limited to: foundations and footings, slabs, basement, detached garage, landscaping, fencing, walls trees and all miscellaneous to clear site complete. Contractor is also responsible for grading the parcel for drainage, importing and exporting fill dirt or aggregate base as needed, capping all water and sewer lines, and compacting to 90% density. Prior to submitting all on -call proposals, the Contractor shall visit the subject project site (including coordinating with the City for access inside the building) and obtain any necessary as-builts to define an appropriate scope of work. All work is to be done in accordance with all applicable federal, state and local regulations, standards and codes governing demolition and any other trade work done in conjunction with the demolition. Copies of all demolition permits, water and sewer cap inspection approval and a letter of completion should be submitted for City's files prior to the Contractor receiving payment. The Contractor shall supply all necessary labor, materials, services, insurance, permits, and equipment to carry out the work in accordance with all applicable federal, state, and local regulations. The Contractor at all times shall keep the Project site free from accumulation of waste materials or rubbish caused by the Contractor's operations. At the completion of each trade of the work, and at final completion prior to contractor submitting the final invoice, Contractor shall remove all waste materials, and rubbish from and about the project as well as tools, construction equipment, -machinery, and surplus materials. Contractor shall hand deliver a City provided work notice letter to adjacent resident owners at least one week prior to the demolition work. 25H-11 Asbestos Abatement: The work described herein consists of removal and disposal of ALL asbestos containing materials (ACM -friable or nonfriable) and subsequent cleaning of the sites in accordance with all applicable federal, state and local regulations, standards and codes governing asbestos and any other trade work done in conjunction with the abatement, Results of any testing that identify asbestos containing materials will be provided by the City. It is the responsibility of the Contractor to determine if any additional asbestos removal is required in addition to the surveys. Copies of all notifications must be submitted to City including, abatement contractor's license, map and/or clear documentation specifying asbestos containing materials abated; completed waste manifests; and a completion totter indicating that all asbestos containing materials from these properties have been abated and properties are ready to be demolished. Lead Removal: The Contractor shall take all necessary precautions and follow all Occupational Safety & Health Administration (OSHA')s guidelines required in the handling of lead contained materials if any are detected. Please refer to the Lead Hazard Evaluation Report which will be provided to the Contractor prior to on -call bid. Rat and/or Vermin Abatement: Contractor, prior to performing demolition, is responsible for providing rat and/or vermin abatement. As part of the demolition completion package, written certification will be provided to the City, stating that such work was performed, and that the structures were free of infestation prior to the demolition taking place. Erosion Control: Contractor shall prepare erosion and sediment control plan immediately after award of the contract for the approval of the Engineer. The plan shall be prepared per the applicable guidelines described in the latest version of the Orange County Program Construction Runoff Guidance Manual (htip:Hocwatersheds.com/documents/bmn/constructionactivities). The Contractor shall submit the plans for review and shall make the necessary revisions to the plans as directed by the City. The plans shall be prepared by a Civil Engineer licensed in the State of California. The City may waive the requirement of licensed Civil Engineer if the Contractor can satisfactorily prove to the City that the person preparing the erosion control plan is qualified in the field of erosion control. The Contractor shall keep a copy of the erosion control plan on -site for the duration of the contract and shall provide all necessary control devices to implement all necessary measures as shown on the plan. The erosion control plan shall remain in effect until approval to remove is granted by the City. All erosion control materials shall be available on -site and stockpiled at a convenient location to facilitate rapid construction of temporary devices when rain is eminent. 25H-12 Fee Proposal Contractor shall submit a fee proposal as described below in a sealed fee envelope. shall be based on ON -CALL DEMOLITION SERVICES for the sample project site The proposal will be used for fee comparison and evaluation purposes. Furthermore, will become part of Exhibit B of the Contract Agreement and will be used to comp task order quote requested by the City. Fee proposal shall include: o Description of work (summarized scope of services) o Fee (per spreadsheet below) o Schedule (from date of receiving a Notice to Proceed to task order completion) SUBJECT PROJECT SITE DESCRIPTION: This fee proposal described below. this fee proposal are with an actual The subject sample project site is for comparison and evaluation purposes. The sample project is located at 1301 W 11`h Street, Santa Ana, CA 92703. The following is a brief description of the sample project site. Please refer to Appendix - Attachment 5 for full project site description and Asbestos, Lead -Based Paint/Universal Waste Survey. The building is one story residential structure with stucco over wood framing exterior walls with brick fascia construction with the following approximate dimensions: - Main Dwelling Area: 1,685 sf - Garage: 390 sf - Covered Patio: 275 sf - Total Area: 2,350 sf - Total Land Area: 6,970 sf Contractor is responsible for demolishing all improvements, including: 4" thick concrete slab foundation and footings to a depth of 3', and all surrounding landscaping. Contractor is also responsible for clearing the site, grading the parcel for drainage, capping all sewer lines, and compacting to 90% density. Erosion control to include importing and exporting fill dirt as needed, installing straw waddles around site perimeter, topping site with 1" base course to prevent wind erosion, and installing rumble plates for the duration of the demolition. Price provided below shall be based solely on the information provided hereon and shall be an all- inclusive price and shall include all items listed and cover all items or work identified above and Appendix - Attachment 5 to deliver a clear site with no remaining improvements. Note: If visual inspection of the interior subject property is needed, contractor may contact Mindy Ly at (714) 647-5665 for an appointment. Visitation must be made by Wednesday, January 18, 2017. 25H-13 CITY OF SANTA ANA RFP 17-004 Demolition Services Company Name: J G Industries, Inc, 1301 W 11th Street, Santa Ana, CA Item Description Cost 1 Permitting $ 600.00 2 Engineering $ 750.00 3 Site Fencing for Duration of Demolition $ 200.00 4 Canopy BMP's/Erosion Control $ 9,500.00 5 Asbestos/Hazardous Stabilization and Abatement (on a separate sheet, provide a detail cost for this lump sum amount) $ 3,647.00 6 Universal Waste Disposal $ 875.00 7_ Interior Demolition $ 150A0 8 Exterior Wall/Building Demolition $ 16,970M 9 Sitework Demolition $ 2,125,00 10 landscape and Trees Removal and Clearing $ 1,125.00 11 Vermin Abatement (Assume present) $ 180.00 12 Bee Colony Abatement ( Assume present) $ 225.00 13 Other (describe) WATER $ 200.00 14 iTotal Price $ 28,547.00 *Item 4 is inclusive of rumble plates, straw wattle/sand bags and at a minimum 2 inches of 1 inch base material spread evenly over entire lot /X 25H-14 SCOPE OF WORK: Our subcontractor to furnish all labor (prevailing wages), materials, equipment, transportation, disposal, services and insurance for which specifically pertains to the following project activities, 1-remove asbestos containing materials per the SCS survey dated December 20, 2016 including transite pipe; window putty & roof mastic 2-perform lead abatement and stabilization of Items indicated per the SCS survey dated December 20, 2016 3-conduct a lead waste disposalcharacterization of the complete structure to determine that all waste . can be disposed of as construction debris / trash Work to be completed in (2-3) shifts, 8 hrs. /shift Monday -Friday All work to be completed in compliance with SCAQMD, CAL OSHA, EPA and Local Regulations LUMP SUM PRICE: $3,647.00 25H-15 25H-16 EXHIBIT 2 AGREEMENT TO PROVIDE DEMOLITION SERVICES ON AN ON -CALL BASIS THIS AGREEMENT is made and entered into this 21" day of February, 2017 by and between NATIONAL DEMOLITION CONTRACTORS ("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. On January 10, 2017, the City issued Request for Proposal No. 17-004, by which it sought Contractors to provide On -Call Demolition Services for the City of Santa Ana Public Works Agency. B. Contractor submitted a responsive proposal that was among those selected by the City. Contractor represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 17-004 and attached as Exhibit A. 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 On an as needed basis, and at the discretion of City, Contractor shall perform the services that are described in Exhibit A. Contractor's proposal is incorporated by reference as though fully set forth herein. When the need for services arises, City may initiate services through use of a task order issued to Contractor. 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Contractor under this Agreement. Contractor shall be paid only for actual services performed under this Agreement at the rates and charges for the sample project site identified in Exhibit B. Contractor is one of three Contractors selected to provide demolition services on an as needed basis under RFP No. 17-004. The total funds for all services provided under RFP No. 17-004 is a collective amount not to exceed $2,200,000. 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 Page 1 of 8 25H-17 performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on February 20, 2020, unless terminated earlier in accordance with Section 16, below. The term of this Agreement may be extended for one additional (2) year period, upon a writing executed by the City Manager and the City Attorney. 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 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. 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 Contractor under this Agreement ("Documents & Data"). Contractor 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. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor 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, 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 Page 2 of 8 25H-18 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 with respect to insurance or self-insurance programs maintained by the CITY; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor 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, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Contractor 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 Contractor pursuant to this section: (i) Contractor 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 cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. (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 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 25 i3-189 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. 7. INDEMNIFICATION Contractor agrees to defend, 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 negligent operations of the Contractor 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 Contractor 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. 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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Contractor to the City pursuant to this Agreement. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor 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 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 Page 4 of 8 25H-20 work, data, docmnents, 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. 10. CONFIDENTIALITY If Contractor receives from the City information which due 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 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 Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without 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. 11. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interest 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 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 Pa e5of8 251-21 To Consultant: Fax 714-647-5635 National Demolition Contractors 1536 West 25`h Street #248 San Pedro, CA 90732 Fax 310-832-4989 A party may change its address by giving notice in writing to the other party. Thereafter, any commumication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by 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 Contractor regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of anypurchase 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 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 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. 15. WAIVER No waiver of 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 or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not Page 6 of 8 25H-22 similar, nor shall any waiver constitute a continuing waiver unless the writing so specifics. 16. TERMINATION This Agreement may be terminated by the City upon thirty (30) 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, subject to the following conditions; a. As a condition of such payment, the Executive Director 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. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 17. NON-DISCRIMINATION Contractor shall not discriminate because of race, color, creed, relation, 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. 18. 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. 19. 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 permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. Pa e7of8 25-23 20. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: t. ' a 7 N M. FUNK. Assistant City Attorney fK@JJW,V1'C FRED MOUSAVIPOUR Executive Director Public Works Agency CITY OF SANTA ANA GERARDO MOUET Acting City Manager NAME: TITLE: Page 8 of 8 25H-24 EXHIBIT A SCOPE OF WORK Introduction and Backeround: The City of Santa Ana is issuing this Request for Proposals (RFP) to seek a qualified Demolition contractor(s) to provide demolition, including asbestos abatement and hazardous materials removals, services for the City of Santa Ana on an as -needed basis. From the proposals received, it is the City's goal to select one or more firms to enter into agreement(s). Approximately 50 residential and commercial properties along Bristol Street (Warner to St. Andrew Place and Civic Center to 17th Street) will need to be demolished by end of 2017. The total demolition services needed for this On -call contract(s) is valued at approximately $2,200,000. The total amount to be expended shall be shared among all contractors providing these services. Scone of Services: Contractor is responsible for the payment of all applicable permits required to conduct the below scope of services. The On -Call contractor shall respond with a task order quote within 5 working days of receiving the request for a task order quote, Selection of a contractor to perform each task order shall consider past work completion performance. Demolition: Contractor is responsible for demolishing and disposal/recycling of all improvements, including but not limited to: foundations and footings, slabs, basement, detached garage, landscaping, fencing, walls trees and all miscellaneous to clear site complete, Contractor is also responsible for grading the parcel for drainage, importing and exporting fill dirt or aggregate base as needed, capping all water and sewer tines, and compacting to 90% density. Prior to submitting all on -call proposals, the Contractor shall visit the subject project site (including coordinating with the City for access inside the building) and obtain any necessary as-builts to define an appropri.ate scope of work. All work is to be done in accordance with all applicable federal, state and local regulations, standards and codes governing demolition and any other trade work done in conjunction with the demolition. Copies of all demolition permits, water and sewer cap inspection approval and a letter of completion should be submitted for City's files prior to the Contractor receiving payment. The Contractor shall supply all necessary labor, materials, services, insurance, permits, and equipment to carry out the work in accordance with all applicable federal, state, and local regulations. The Contractor at all times shall keep the Project site free from accumulation of waste materials or rubbish caused by the Contractor's operations. At the completion of each trade of the work, and at final completion prior to contractor submitting the final invoice, Contractor shall remove all waste materials, and rubbish from and about the project as well as tools, construction equipment, machinery, and surplus materials. Contractor shall hand deliver a City provided work notice letter to adjacent resident owners at least one week prior to the demolition work. 25H-25 Asbestos Abatement: The work described herein consists of removal and disposal of ALL asbestos containing materials (ACM -friable or nonfriable) and subsequent cleaning of the sites in accordance with all applicable federal, state and local regulations, standards and codes governing asbestos and any other trade work done in conjunction with the abatement, Results of any testing that identify asbestos containing materials will be provided by the City. It is the responsibility of the Contractor to detenrnne if any additional asbestos removal is required in addition to the surveys. Copies of all notifications must be submitted to City including, abatement contractor's license, map and/or clear documentation specifying asbestos containing materials abated; completed waste manifests; and a completion letter indicating that all asbestos containing materials from these properties have been abated and properties are ready to be demolished. Lead Removal: The Contractor shall take all necessary precautions and follow all Occupational Safety & Health Administration (OSHA')s guidelines required in the handling of lead contained materials if any are detected. Please refer to the Lead Hazard Evaluation Report which will be provided to the Contractor prior to on -call bid. Rat and/or Vermin Abatement: Contractor, prior to performing demolition, is responsible for providing rat and/or vermin abatement. As part of the demolition completion package, written certification will be provided to the City, stating that such work was performed, and that the structures were free of infestation prior to the demolition taking place. Erosion Control: Contractor shall prepare erosion and sediment control plan immediately after award of the contract for the approval of the Engineer. The plan shall be prepared per the applicable guidelines described in the latest version of the Orange County Program Construction Runoff Guidance Manual (htto://ocwatersheds com/documents/bmn/constructionactivities). The Contractor shall submit the plans for review and shall make the necessary revisions to the plans as directed by the City. The plans shall be prepared by a Civil Engineer licensed in the State of California. The City may waive the requirement of licensed Civil Engineer if the Contractor can satisfactorily prove to the City that the person preparing the erosion control plan is qualified in the field of erosion control. The Contractor shall keep a copy of the erosion control plan on -site for the duration of the contract and shall provide all necessary control devices to implement all necessary measures as shown on the plan. The erosion control plan shall remain in effect until approval to remove is granted by the City. All erosion control materials shall be available on -site and stockpiled at a convenient location to facilitate rapid construction of temporary devices when rain is eminent. 25H-26 Fee Proposal Contractor shall submit a fee proposal as described below in a sealed fee envelope. This fee proposal shall be based on ON -CALL DEMOLITION SERVICES for the sample project site described below. The proposal will be used for fee comparison and evaluation purposes. Furthermore, this fee proposal will become part of Exhibit B of the Contract Agreement and will be used to compare with an actual task order quote requested by the City. Fee proposal shall include: o Description of work (summarized scope of services) o Fee (per spreadsheet below) o Schedule (from date of receiving a Notice to Proceed to task order completion) SUBJECT PROJECT SITE DESCRIPTION: The subject sample project site is for comparison and evaluation purposes. The sample project is located at 1301 W 11"' Street, Santa Ana, CA 92703. The following is a brief description of the sample project site. Please refer to Appendix - Attachment 5 for fall project site description and Asbestos, Lead -Based Paint/Universal Waste Survey. The building is one story residential structure with stucco over wood framing exterior walls with brick fascia construction with the following approximate dimensions: - Main Dwelling Area: 1,685 sf - Garage: 390 sf - Covered Patio: 275 sf - Total Area: 2,350 sf - Total Land Area: 6,970 sf Contractor is responsible for demolishing all improvements, including: 4" thick concrete slab foundation and footings to a depth of 3', and all surrounding landscaping. Contractor is also responsible for clearing the site, grading the parcel for drainage, capping all sewer lines, and compacting to 90% density. Erosion control to include importing and exporting fill dirt as needed, installing straw waddles around site perimeter, topping site with 1" base course to prevent wind erosion, and installing nimble plates for the duration of the demolition. Price provided below shall be based solely on the information provided hereon and shall be an all- inclusive price and shall include all items listed and cover all items or work identified above and Appendix - Attachment 5 to deliver a clear site with no remaining improvements. Note: If visual inspection of the interior subject property is needed, contractor may contact Mindy Ly at (714) 647-5665 for an appointment. Visitation must be made by Wednesday, January t 8, 2017. 25H-27 EXHIBIT B CITY OF SANTA ANA RFP 17-004 Demolition Services Company Name! National Demolition Contractors 1301 W lit" Street, Santa Ana, CA Item Description Cost $ 1120.00 Permittin $ 350.00 Engineering $ '1400,00 Site Fencing for Duration of Demolition $ 2800.00 Canopy BMP's/Erosion Control Plan $ 4900.00 Asbestos/Hazardous $tabillzation and Abatement, (on a separate sheet, provide a detail cost for this sump sum amount) $ 350,00 Universal Waste Disposal $ 1050.00 Interior Demolition $ 5600.00 Exterior Wall/Buildiri oundation Demolition • $ 2800.00 Sitework Demolition $ 2800.00 Landscape and Trees Removal and Clearin $ 1050.00 Vermin Abatement(Assume resent $ 630,00 Bee Colony Abatement Assumepresent) $ N/A Other describe.,.) $ 24,850.00 Total Price 25H-28 COST ESTIMATE SHEET Project Name: Santa Ana Annual Demo Contract Estimator: Location: City of Santa Ana- various projects Darrell Client/Contractor: City of Santa Ana Date: 1/18/2017 QUANTITY UNIT DESCRIPTION- Prevailing wage rate MD's 0 Sq. ft. floor the w/mastic= 0 0 L,ft roof mastic = (acem) remove with demo 0 0 SF roofing with mastic = 0 0 S . ft. CARPETmastic= 0 0 Ea, computerjloor,mastic= 0 0 Sq. ft. roo In -.60 0 10 Ea. transite pipe= 200# 0,2 0 Sq, ft. ROOFING PARAPET WALLS= .23 0.000 0 JOINT COMP/DRYWALL=#910 0.00 0 ROOFING PARAPET WALLS= 1000 0 100 Sq. ft. Air cell insulation 1.00 224 LF Windows and putty removal (assumes 10 windows removed Intact) 1.87 Quantity tblaterial/EquipmentDescription I U. Cost � T. Cast 4 TOTAL 3.07 Clear Bags (Roll) $ 50.00 $ Hazardous Materials Printed Bags (Roll) $ 30.00 $ Glove Bags (Box) $ 150.00 $ Type MD's 0 Poly 4 Mil (Roll) $ 40.00 $ ballast 0 0 Poly 6 Mil (Roll) $ 85.00 $ paint/unly 0.1729 Poly 10Mil (Roll) $ 95.00 $ submittal 0 0 Duct Tape (Case) $ 75.00 $ OIL 0 0 Spray Glue (Case) $ 25,00 $ SUMMARY 0 Encapsulate (5Gai.) (State Type) $ 75.00 $ Total MD's 3.239566667 Solvent (5Gal) (State Type) $ 60.00 $ Wage Rate $536.00 HDOT 55 Gal, Drums (Ea.) ,$ 40.00 $ T. Wages $1,736,41 Boxes (Ea.) $ .5.50 $ 0, T. $0.00 TOTAL , $ Materials $260.46 Quantity Rental Equipment/Sub Contractor U. Cost 1 T. Cost 1 Mobilization $200.00 0 ballast200 $ 544.00 $ Monitoring $38.87 0 UNIVERSAL $ 150.00 $ Disposal p ,$1,250.00 TOTAL $ Not. Fee $65,00 Disposal Fhin Drum T & D y Unit Cost 1 TOTAL f Pro 5 $0.00 TRASH 0 $ $ 550.00 $ Fire Dept. $0.00 Non -Hazardous 0 $ $ 650.00 $ Sub -Total $3,.550.74 Hazardous 1 $ - $ 1,250.00 $ 1,250.00 O&P $1,349.28 CA. Waste $ - $ 2,800.00 $ - Rental/Subs $0.00 RCRA 0 $ - $ 3,500.00 $ - Sub -Total $4,900.03 Tubes in Ft. 0 0 $ .73 per Ft. $ Bond .$0.00 RCRA $ $ 250.00 .$ Comm. $0.00 TOTAL WASTE DISPOSAL COST-. $ 1,250,00 TOTAL $4,900.03 Actual Man Day Selling Rate - $ 1,512.S6 Actual Selling Cost - $4,900.03 Bid Total $4,900.00 25H-29 25H-30 EXHIBIT 3 AGREEMENT TO PROVIDE DEMOLITION SERVICES ON AN ON -CALL BASIS THIS AGREEMENT is made and entered into this 2111 day of February, 2017 by and between INTERIOR DEMOLITION, 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. On January 10, 2017, the City issued Request for Proposal No. 17-004, by which it sought Contractors to provide On -Call Demolition Services for the City of Santa Ana Public Works Agency. B. Contractor submitted a responsive proposal that was among those selected by the City. Contractor represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 17-004 and attached as Exhibit A. 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 On an as needed basis, and at the discretion of City, Contractor shall perform the services that are described in Exhibit A. Contractor's proposal is incorporated by reference as though fully set forth herein. When the need for services arises, City may initiate services through use of a task order issued to Contractor. 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Contractor under this Agreement. Contractor shall be paid only for actual services performed under this Agreement at the rates and charges for the sample project site identified in Exhibit B. Contractor is one of three Contractors selected to provide demolition services on an as needed basis under RFP No. 17-004. The total funds for all services provided under RFP No. 17-004 is a collective amount not to exceed $2,200,000. 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 Pa e 1 of 8 25-31 performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on February 20, 2020, unless terminated earlier in accordance with Section 16, below. The term of this Agreement may be extended for one additional (2) year period, upon a writing executed by the City Manager and the City Attorney. 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 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. 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 Contractor under this Agreement ("Documents & Data"). Contractor 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. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor by the City. City shall not be limited in anyway 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, 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 Page 2 of 8 25H-32 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 with respect to insurance or self-insurance programs maintained by the CITY; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor 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, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Contractor 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 Contractor pursuant to this section: (i) Contractor 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 cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. (iv) Contractor shall supply City with a fully executed additional insured endorsement. f. If Contractor 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 Pa e3oH 2 H-33 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. INDEMNIFICATION Contractor agrees to defend, 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 negligent operations of the Contractor 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 Contractor 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. 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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Contractor to the City pursuant to this Agreement. 9. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor 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 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 Page 4 of 8 25H-34 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. 10. CONFIDENTIALITY If Contractor receives from the City information which due 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 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 Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without 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. 11. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interest 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 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 Pa e5of8 2H-35 To Consultant: Fax 714-647-5635 Interior Demolition, Inc. 2621 Honolulu Avenue Montrose, CA 91011 Fax 818-249-4937 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 Contractor regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor 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 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. 15. WAIVER No waiver of 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 or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not Page 6 of 8 25H-36 similar, nor shall any waiver constitute a continuing waiver unless the writing so specifics. 16. TERMINATION This Agreement may be terminated by the City upon thirty (30) 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, subject to the following conditions: a. As a condition of such payment, the Executive Director 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. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 17. NON-DISCRIMINATION Contractor shall not discriminate because of race, color, creed, relation, 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. 18. 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. 19. 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 permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. Pa e7of8 251-37 20. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: JOHN M.FUNK Assistant City Attorney FRED MOUSAVIPOUR Executive Director Public Works Agency CITY OF SANTA ANA GERARDO MOUET Acting City Manager INTERIOR DEMOLITION, INC. NAME: TITLE: Page 8 of 8 25H-38 EXHIBIT A SCOPE OF WORI. Introduction and Background: The City of Santa Ana is issuing this Request for Proposals (RFP) to seek a qualified Demolition contractor(s) to provide demolition, including asbestos abatement and hazardous materials removals, services for the City of Santa Ana on an as -needed basis. From the proposals received, it is the C4's goal to select one or more firms to enter into agreement(s). Approximately 50 residential and commercial properties along Bristol Street (Warner to St. Andrew Place and Civic Center to 17th Street) will need to be demolished by end of 2017. The total demolition services needed for this On -call contract(s) is valued at approximately $2,200,000. The total amount to be expended shall be shared among all contractors providing these services. Scope of Services: Contractor is responsible for the payment of all applicable permits required to conduct the below scope of services. The On -Call contractor shall respond with a task order quote within 5 working days of receiving the request for a task order quote. Selection of a contractor to perform each task order shall consider past work completion performance. Demolition: Contractor is responsible for demolishing and disposal/recycling of all improvements, including but not limited to: foundations and footings, slabs, basement, detached garage, landscaping, fencing, walls trees and all miscellaneous to clear site complete. Contractor is also responsible for grading the parcel for drainage, importing and exporting fill dirt or aggregate base as needed, capping all water and sewer lines, and compacting to 90% density. Prior to submitting all on -call proposals, the Contractor shalt visit the subject project site (including coordinating with the City for access inside the building) and obtain any necessary as-builts to define an appropriate scope of work. All work is to be done in accordance with all applicable federal, state and local regulations, standards and codes governing demolition and any other trade work done in conjunction with the demolition. Copies of all demolition permits, water and sewer cap inspection approval and a letter of completion should be submitted for City's files prior to the Contractor receiving payment. The Contractor shall supply all necessary labor, materials, services, insurance, permits, and equipment to cagy out the work in accordance with all applicable federal, state, and local regulations. The Contractor at all times shall keep the Project site free from accumulation of waste materials or rubbish caused by the Contractor's operations. At the completion of each trade of the work, and at final completion prior to contractor submitting the final 'invoice, Contractor shall remove all waste materials, and rubbish from and about the project as well as tools, constriction equipment, machinery, and surplus materials. Contractor shall hand deliver a City provided work notice letter to adjacent resident owners at least one week prior to the demolition work. 25H-39 Asbestos Abatement: The work described herein consists of removal and disposal of ALL asbestos containing materials (ACM -friable or nonfriable) and subsequent cleaning of the sites in accordance with all applicable federal, state and local regulations, standards and codes governing asbestos and any other trade work done in conjunction with the abatement. Results of any testing that identify asbestos containing materials will be provided by the City. It is the responsibility of the Contractor to determine if any additional asbestos removal is required in addition to the surveys. Copies of all notifications must be submitted to City including, abatement contractor's license, map and/or clear documentation specifying asbestos containing materials abated; completed waste manifests; and a completion letter indicating that all asbestos containing materials from these properties have been abated and properties are ready to be demolished. Lead Removal: The Contractor shall take all necessary precautions and follow all Occupational Safety & Health Administration (OSHA')s guidelines required in the handling of lead contained materials if any are detected. Please refer to the Lead Hazard Evaluation Report which will be provided to the Contractor prior to on -call bid. Rat and/or Vermin Abatement: Contractor, prior to performing demolition, is responsible for providing rat and/or vermin abatement. As part of the demolition completion package, written certification will be provided to the City, stating that such work was performed, and that the structures were free of infestation prior to the demolition taking place. Erosion Control: Contractor shall prepare erosion and sediment control plan immediately after award of the contract for the approval of the Engineer. The plan shall be prepared per the applicable guidelines described in the latest version of the Orange County Program Construction Runoff Guidance Manual (http://oewatersheds corn/documents/bmo/constructionactivities). The Contractor shall submit the plans for review and shall make the necessary revisions to the plans as directed by the City. The plans shall be prepared by a Civil Engineer licensed in the State of California. The City may waive the requirement of licensed Civil Engineer if the Contractor can satisfactorily prove to the City that the person preparing the erosion control plan is qualified in the field of erosion control. The Contractor shall keep a copy of the erosion control plan on -site for the duration of the contract and shall provide all necessary control devices to implement all necessary measures as shown on the plan. The erosion control plan shall remain in effect until approval to remove is granted by the City. All erosion control materials shall be available on -site and stockpiled at a convenient location to facilitate rapid construction of temporary devices when rain is eminent. 25H-40 Fee Proposal Contractor shall submit a fee proposal as described below in a sealed fee envelope. This fee proposal shall be based on ON-CALI, DEMOLITION SERVICES for the sample project site described below. The proposal will be used for fee comparison and evaluation purposes. Furthermore, this fee proposal will become part of Exhibit B of the Contract Agreement and will be used to compare with an actual task order quote requested by the City. Fee proposal shall include: o Description of work (summarized scope of services) o Fee (per spreadsheet below) o Schedule (from date of receiving a Notice to Proceed to task order completion) SUBJECT PROJECT SITE DESCRIPTION: The subject sample project site is for comparison and evaluation purposes. The sample project is located at 1301 W I V Street, Santa Ana, CA 92703. The following is a brief description of the sample project site. Please refer to Appendix - Attachment 5 for full project site description and Asbestos, Lead -Based Paint/Universal Waste Survey. The building is one story residential structure with stucco over wood framing exterior walls with brick fascia construction with the following approximate dimensions: - Main Dwelling Area: 1,685 sf - Garage: 390 sf - Covered Patio: 275 sf - Total Area: 2,350 sf Total Land Area: 6,970 sf Contractor is responsible for demolishing all improvements, including: 4" thick concrete slab foundation and footings to a depth of 3', and all surrounding landscaping. Contractor is also responsible for clearing the site, grading the parcel for drainage, capping all sewer lines, and compacting to 90% density. Erosion control to include importing and exporting fill dirt as needed, installing straw waddles around site perimeter, topping site with 1" base course to prevent wind erosion, and installing rumble plates for the duration of the demolition. Price provided below shall be based solely on the information provided hereon and shall be an all- inclusive price and shall include all items listed and cover all items or work identified above and Appendix - Attachment 5 to deliver a clear site with no remaining improvements. Note: If visual inspection of the interior subject property is needed, contractor may contact Mindy Ly at (714) 647-5665 for an appointment. Visitation must be made by Wednesday, January 18, 2017. 25H-41 EXHIBIT B CITY OF SANTA ANA RFP 17-004 Detnolition Services CotnpanyNmne: interior Demalitian, Inc. 1301 VV 11" Sttvet, Santa Ams, CA Item Deserintion Coat 500.00 Permittin ' 500.00 P.n 500.00 Site Fencing for Uaration of Demolition 500.00 Cary V�S(E.IOaIRR Control Flan AsbostadMazardous StabiBution ad Abatement 4,500.00 (on it separate sheet, provide a detail test for this sump stun Itmount $ 500.00 L7niversal Weste Disposal $ 20000,00 Interior Demolition $ 8,000.00 Exterior WaMulldiEWPougWon Demolition Siteworlt Dcmalition 1,000m � Saa.00 Lands end Trees Rmovel and Clearin � $ 200,00 VcrmirtAbstemont Aeaume P19=0 zoo.aa Bee Colon Abatement Aum me Qnt s Other describe... $ 18,900.00 Total Price 25H-42 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: AGREEMENT WITH TRITECH SOFTWARE SYSTEMS FOR ANNUAL SOFTWARE MAINTENANCE AND SUPPORT FOR THE POLICE DEPARTMENT'S CRIME ANALYSIS SOFTWARE ,/%%/ {%�STRATEGIC PLAN NO. 1, 5A) CITY MANAGER RECOMMENDED ACTION U CLERK OF COUNCIL USE ONLY: TIT0.0471W ❑ As Recommended ❑ As Amended ❑ Ordinance on 16' Reading ❑ Ordinance on 2°d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached one-year agreement with TriTech Software Systems, Inc., for the period of November 17, 2016 through November 16, 2017, for software maintenance and customer support in an amount of $5,150 subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION On July 15, 2015, the City entered into agreement N-2015-131 with The Omega Group to provide software licensing, maintenance, support, and online services related to crime analysis. This included The Omega Group's CrimeView software, which enables the Santa Ana Police Department to search and analyze crime data. This agreement also included The Omega Group's CrimeMapping.com online service that makes crime incident information available to the public, thereby increasing communication and transparency. In February of 2016, The Omega Group was purchased by TriTech Software Systems. This software and online service is proprietary and owned by TriTech Software Systems, Inc. and can only be provided by this company. The Police Department wishes to execute a new one-year agreement with TriTech Software Systems, Inc. for $5,150. The Police Department has a separate $3,514,438.39 agreement with TriTech for the purchase, installation, and maintenance of a new integrated software system for Computer Aided Dispatch (CAD) / Records Management System (RMS). Due to TriTech's performance under the CAD/RMS agreement as well as past performance of The Omega Group, the Police Department is recommending approval of this software services agreement. 251-1 Agreement with TriTech for Software Maintenance February 21, 2017 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #1 Community Safety, Objective #5, Promote fiscal accountability to ensure financial responsibility at all/levels of the organization 5a, 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 in the amount of $5,160 are available in Police Department's Information Services contract services account no. 01114425 62300 for the following fiscal years: FY 2016-17 3,433 FY 2017-18 1,717 Total 5,150 Carlos Rojas Chief of Police Santa Ana Police Department Exhibit: 1. Agreement with TriTech APPROVED AS TO FUNDS AND ACCOUNT: Francisco Gutierrez` Executive Director Finance and Mgmt. Services Agency 251-2 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this 17th day of November, 2016 by and between TriTech Software Systems, Inc., a California corporation (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"), RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of software maintenance and support for Crime ViewTM software as well as publishing criminal activity maps via the Internet, The software is used by the Police Department to provide a mechanism for crime analysis, crime mapping and to provide crime mapping to the public. B. The City entered into a Consultant Agreement with The Omega Group (N-2015-131) which had provided software for crime analysis and online services to the City. C. Consultant purchased the assets held by The Omega Group including the Crime ViewTM software and CrimeMapping.com website in February of 2016. D. Consultant represents that Consultant is able and willing to provide such services to the City. E. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall provide telephone and remote service for CrimeMapping.com and Crime ViewTM software upon the City's request or for updates and software issues identified by consultant. In addition, Consultant will provide crime mapping to the public by way of an internet website. Consultant has provided the Software Support Terms that are attached hereto and incorporated herein as Exhibit "A". 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, an amount that does not exceed $5,150 during the term of this Agreement. The Quote for the Services is attached hereto and incorporated herein as Exhibit "B". 1 251-3 b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on November 16, 2017, unless terminated earlier in accordance with Section 12, below. However, for continuity of service, the parties intended to have this agreement include services provided since November 16, 2016. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Consultant represents that all technical support and maintenance is conducted remotely or by telephone and that consultant will not send any of its employees to City's property. As a result, evidence of commercial general liability, worker's compensation, and automobile liability insurance are waived. Notwithstanding, in order for consultant to remotely access City's secure network, City requires the following insurance: a. Professional liability (errors and omissions) insurance,, with a combined single limit of not less than $1,000,000 per claim. b. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to. the City. 251-4 c. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, 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. 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. 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. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 3 251-5 9. NOT.ICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax (714) 647-6956 With courtesy copies to: City of Santa Ana Police Department Attention: Chief of Police 60 Civic Center Plaza (M-97) P.O. Box 1981 Santa Ana, California 92702 Fax (714)245-8090 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 647-6515 To Consultant: Tritech Software Systems, Inc. 9477 Waples Street, #100 San Diego, CA 92121 Fax(858) 799-7317 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 251-6 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the Citys prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement maybe terminated by either party upon thirty (30) days written notice of termination to the other party. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termhnation or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. s 251-7 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, continuing education, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16, MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. EVw106 MARIA D. HUIZAR Cleric of the Council APPROVED AS TO FORM: SONIA R. CARVAL O Ci tomey B Tamara Bogosian Assistant City Attorney RECOMMENDED FOR APPROVAL: CARLOSROJAS Acting Chief of Police CITY OF SANTA ANA GERARDO MOUET Acting City Manager CONSULTANT TriTech Software Systems, BLAKE CLARK Chief Financial Officer 6 251-8 Exhibit "A" 251-9 -rR1-rECH SQF I k4iRE SYSTEMS SOFTWARE SUPPORT TERMS 1.0 DEFINITIONS TriTech Software Systems 9477 Waples Street, Ste. 100 San Diego, CA 92121 Phone:858.799.7000 Fax:858.799.7011 www.tritech.com 1.1 All capitalized terms used in this Addendum and not otherwise defined herein shall have the meanings given them in the Agreement, which section is incorporated by reference herein as though set forth in full. 2.0 TERM AND TERMINATION 2.1 The initial term of Software Support services provided under this Addendum shall. begin at first Go Live for the TriTech Software and end twelve (12) months thereafter. Software Support for subsequent annual terms shall be subject to renewal of this Addendum and payment of the renewal Software Support fees. Provided that notice of termination has not been provided in accordance with section 2.3 below, no less than thirty (30) days prior to the expiration of the then current support term, and no less thirty (30) days prior to each annual anniversary thereof, TriTech shall provide to Client a Software Support Renewal Notice for signature. TriTech reserves the right to change the terms and conditions upon which Software Support shall be offered for renewal terms, subject to written notice to, and agreement of the Client. 2.2 Either party may terminate this Addendum upon written notice to the other party in the event that (i) the other party fails to comply with any material term or condition of this Addendum, provided that such failure has not been cured within thirty (30) days receipt of written notice of such failure; or (ii) the other party's business operations are disrupted or discontinued for more than thirty (30) days by reason of insolvency, bankruptcy, receivership or business termination; or (iii) written notice of termination for convenience is provided by Client within ninety (90) days' prior to the end of the then current support term. 2.3 Software Support fees are due and payable on an annual basis in advance. In the event that TriTech terminates this Agreement, TriTech shall refund a prorated portion of the Software Support fees paid by Client for the annual support period in which the Agreement is terminated. City of Santa Ana Police Department System Purchase Agreement Copyright © 2016 TriTech Software Systems — Confidential & Proprietary IQ Desktop Applications Unpublished: Rights reserved under the copyright laws of the United States Page 1 of 13 251-10 3.0 SUPPORT FEE(S) 3.1 Following the initial term, either party may terminate this Addendum upon written notice to the other party ninety (90) days prior to the end of the then current annual support term. 3.2 Unless otherwise terminated as provided herein, TriTech shall notify Client in writing no later than thirty (30) days prior to the end of the initial support term of the Software Support fees for the first renewal term. Unless otherwise agreed in writing, Software Support fees shall be due on or before the commencement of each annual support term and are due for all TriTech Software applications and modules licensed to Client. Software Support fees shall not be due and payable by Client to TriTech until TriTech has submitted to Client a properly documented and executed Client voucher for such fees. Software Support fee for the first renewal term and all renewals thereafter shall be shall be subject to increase on an annual basis at a rate of 5%. Additional licenses purchased by Client during any annual support period will result in additional support fees which shall be prorated to be coterminous with Client's then current support period. 3.3 Software Support fees do not include reasonable travel, food or lodging expenses incurred by TriTech for support services provided at Client's site or other locations remote from TriTech's principal place of business. Such expenses shall be paid by Client on receipt from of a properly documented and executed Client voucher for such expenses. 3.4 If Client ceases to keep this Addendum in force, any resumption of such annual support shall be subject to payment by Client of all past unpaid Software Support fees in addition to the Software Support fee for the current support year. Payment of applicable fees for any additional services required to bring Client's system current, which fees shall be charged at TriTech's then current rates for such services, shall also be the responsibility of the Client. These services and fees must be approved by the Parties in advance of the services being delivered. Client acknowledges and agrees that the preceding clause is reasonable in light of the fact that the expenses incurred and resources devoted by TriTech to further development, enhancement and support of the TriTech Software must be spread over TriTech's client base and fairly shared by all TriTech Software users. 3.5 TriTech remittance address is: TriTech Software Systems P.O. Box 203223 Dallas, TX 75320-3223 3.5.1 Payments may be made by check, wire transfer; or Automated Clearing House ("ACH"). TriTech will provide banking information if Client requests to pay by wire transfer or ACH. 3.6 Except for taxes for which Client provides TriTech with written certification of its tax-exempt status, if TriTech is required to collect or pay sales, use, property, value-added, or other City of Santa Ana Police Department System Purchase Agreement Copyright © 2016 TriTech Software Systems — Confidential & Proprietary IQ Desktop Applications Unpublished: Rights reserved under the copyright laws of the United States Page 2 of 13 251-11 such taxes based on the software or services provided under this Addendum, and/or Client's use thereof, then such taxes shall be invoiced to and paid by Client on receipt of such invoice. 4.0 SUPPORT SERVICES, POINT OF CONTACT, AND CODE OF CONDUCT 4.1 TriTech will provide support services as more fully described in Exhibit B. 4.2 Client shall appoint a principal point of contact with a level of knowledge of the TriTech Software and Client's computer environment to manage the reporting of Software Errors to TriTech in accordance with the Software Error Guidelines and Procedures set forth in Exhibit B. 4.3 TriTech and Client shall perform their obligations under this Addendum in a professional and ethical manner, and ensure a work environment free of unlawful harassment. Issues related to this provision shall be reported in writing by the reporting party's supervisor, manager, or executive as applicable to the other party's respective counterpart for applicable resolution. 5.0 SOFTWARE ERROR CORRECTION AND ACCESS 4.1 If, during the term of this Addendum, Client determines that Software Error(s) exist, it will first follow any error procedures specified in the TriTech Documentation. If following the error procedures does not correct the Software Error, Client shall promptly notify TriTech pursuant to the guidelines and procedures described in Exhibit B, setting forth the defects noted with specificity requested by TriTech. Upon notification of a reported Software Error, TriTech shall attempt to reproduce and verify the error and, if so verified, will manage the Software Error(s) in accordance with Exhibit B. If TriTech is unable to reproduce the Software Error at TriTech's facility, the Client will assist in the research of a support issue including logging or other diagnostic tools as provided by TriTech. TriTech will provide onsite assistance if the Client and TriTech determine that it is necessary for TriTech personnel to travel to Client's site to reproduce the error. If it is determined that reported problem was caused by the TriTech Software, TriTech will be responsible for its travel and related expenses for the onsite visit. In the event that the reported problem is determined to be the result of Equipment, Subcontractor Software or Hardware, or System Software, or is otherwise not attributable to the TriTech Software Client shall reimburse TriTech for its travel expenses incident to the on -site visit, as well as TriTech's labor related to the on -site visit at its then current hourly rates for technical support and engineering. 4.2 TriTech maintains a Security program for security managing access to Client data — particularly HIPAA and CJIS information. This includes 1) a Pre -employment background check, 2) security training required by Federal CJIS regulations, and 3) criminal background checks/fingerprints required by Federal or State regulations. TriTech will work with the Client to provide required documentation (such as the CJIS Security Addendum Certification form and VPN documents). City of Santa Ana Police Department System Purchase Agreement Copyright © 2016 TriTech Software Systems — Confidential & Proprietary IQ Desktop Applications Unpublished: Rights reserved under the copyright laws of the United States Page 3 of 13 251-12 City of Santa Ana Police Department Copyright © 2016 ThTech Software Systems — Confidential & Proprietary Unpublished: Rights reserved under the copyright laws of the United States System Purchase Agreement IQ Desktop Applications Page 4 of 13 251-13 4.3 If required by the Client, TriTech will provide paper fingerprint cards for such Security Approved personnel with the fingerprinting performed in the state of the TriTech staff's job assignment. If the Client requires fingerprints submitted in a form other than paper prints (such as Live Scan) or that such fingerprints be performed at the Client's site, the Client will reimburse TriTech for the cost of TriTech Security Approved Personnel traveling to the Client's site or for a vendor (such as Live Scan) to travel to the applicable TriTech Offices. This provision will apply during the duration of this Addendum. 6.0 SOFTWARE UPDATES 6.1 From time to time at TriTech's discretion, Updates to the TriTech Software and TriTech Documentation will be developed and provided to Client. All Updates to the TriTech Software and TriTech Documentation shall be subject to the terms and conditions of the Agreement and shall be deemed licensed TriTech Software thereunder. (Updates do not include new applications or separate modules or functions that are separately licensed and priced.) 7.0 LIMITATIONS 7.1 Software Support for the TriTech Software shall be subject to and conditional on Client's implementation and use of a version of the TriTech Software that is the most current general release version thereof that is offered to Client. If Client does not implement the most current general release version when it is made available, TriTech shall only be obligated to provide Software Support for Client's version of the TriTech Software for a period of twelve (12) months thereafter. 7.2 TriTech shall not be obligated to provide Software Support if Client is not current on the payment of all Software Support fees and expenses. 7.3 If any of the following circumstances exist, TriTech shall be entitled to charge additional Software Support fees plus expenses at its then current rates: 7.3.1 Problems in the TriTech Software are caused by modification of the TriTech Software, Subcontractor Software or Hardware, System Software, or Equipment by Client or a third party. 7.3.2 Problems in the TriTech Software are caused by the TriTech Software not being used in accordance with the TriTech Documentation, or other written instructions provided by TriTech, or by misuse or neglect. 7.3.3 Problems in the TriTech Software are caused by software not provided by TriTech, not approved by TriTech in writing or not specified as compatible in the TriTech City of Santa Ana Police Department System Purchase Agreement Copyright © 2016 TriTech Software Systems — Confidential & Proprietary IQ Desktop Applications Unpublished: Rights reserved under the copyright laws of the United States Page 5 of 13 251-14 Documentation. (The procedures for loading third party software on a Workstation or Server are set forth in paragraph 7.4 of this Addendum.) 7.3.4 Problems in the TriTech Software are caused by equipment which does not meet the configuration requirements, or Client does not maintain the site and facility as specified in the TriTech Documentation. 7.3.5 Problems in the TriTech Software are caused by one or more computer viruses that have not been introduced into Client's system by TriTech. Client shall maintain up to date virus checking software in accordance with TriTech Documentation and shall check all software received from TriTech or any other person or entity for viruses before introducing that software into any part of the TriTech System. If desired by Client, TriTech will provide Updates on media rather than direct downloading to facilitate this virus checking. If, despite such check, a virus is introduced by TriTech, TriTech will provide a virus -free copy of the TriTech Software, and will, at its expense, reload said software on Client's Equipment. Client shall practice reasonable back-up procedures for the TriTech System in accordance with TriTech Documentation. 7.3.6 Problems in the TriTech Software are caused by Subcontractor Software or System Software, including but not limited to operating system software. 7.3.7 Problems in the TriTech Software are caused by Equipment or software provided by Client or third parties with which the TriTech Software interfaces or operates (including but not limited to Subcontractor Software or Hardware), including but not limited to problems caused by changes in such Equipment or software. 7.4 If, at any time after installation of the System, Client desires to load on a Workstation or Server any software not provided by TriTech, it shall, before loading such software, follow the procedures regarding third party software compatibility in the TriTech Documentation, and contact the TriTech Customer Service Department at the telephone numbers listed in Exhibit B for assistance as required. Such action shall not constitute approval, express or implied, for the loading of specific software on a Workstation or Server, nor any express or implied warranty, representation or other obligation by TriTech with respect to such software, including but not limited to its suitability, operability or capability to meet Client's needs or expectations. Client agrees that if the loading of such third party software degrades the performance of the System, Client shall immediately uninstall such software. TriTech shall not have any obligations or liabilities related to operation or performance of the System, the TriTech Software, Subcontractor Software, or any other item provided by TriTech under this Addendum, including but not limited to any liabilities for damages related thereto in connection with the installation of such third party software. 7.5 TriTech Software Support under this Addendum, or any renewal or extension thereof, shall not include design, engineering, programming, testing, implementation or other services rendered necessary by changes in Subcontractor Software, System Software or City of Santa Ana Police Department System Purchase Agreement Copyright © 2016 TriTech Software Systems — Confidential & Proprietary IQ Desktop Applications Unpublished: Rights reserved under the copyright laws of the United States Page 6 of 13 251-15 Equipment, or in any other hardware, firmware or software provided by third parties or Client ("Third Party Changes"). Any such services shall be subject to additional charges by TriTech and the mutual agreement of the parties as to the terms and conditions under which such services are rendered. Absent such agreement, TriTech shall be under no obligation, express or implied, with respect to such Third Party Changes. 7.6 Problems in the TriTech Software or transmission of data caused by wireless services are not warranted by TriTech, or covered under the terms of this Addendum. Client's use of services provided by wireless service providers or carriers, and the security, privacy, or accuracy of any data provided via such services is at Client's sole risk. 7.7 Client is responsible for maintaining the required certifications for access to Client's state CHS system(s), NCIC and/or other local state, federal and/or other applicable systems. 8.0 EQUIPMENT, SUBCONTRACTOR SOFTWARE AND HARDWARE, AND SYSTEM SOFTWARE 8.1 Maintenance and support for Equipment provided under the Agreement, if applicable, is not included under this Addendum. However, since proper computer equipment maintenance is required for proper system operation, Client shall acquire and keep in force equipment maintenance agreements for the computer and peripheral equipment used to operate the TriTech Software, or to provide such maintenance in-house with qualified personnel. If Client determines that an item of Equipment provided under this Addendum does not perform as provided in the applicable specifications, Client may contact TriTech using the procedures described in Exhibit B. TriTech shall thereupon provide Help Desk services to Client with respect to the reported problem and reasonable assistance, as defined in 8.2 below, in determining the cause of the reported problem. Notwithstanding the above, TriTech is not and shall not be a party to such third party maintenance agreements nor shall TriTech have any obligation or liability thereunder. 8.2 Maintenance and support for Subcontractor Software, Subcontractor Hardware, or System Software sold or licensed under the Agreement shall be subject to and provided in accordance with any maintenance agreements between Client and the suppliers thereof, or other third party maintenance providers. If Client determines that an item of Subcontractor Software or Hardware, or System Software provided under the Agreement does not perform as provided in the applicable Specifications, Client may contact TriTech using the procedures described in Exhibit B. TriTech shall thereupon provide Help Desk services to Client with respect to the reported problem and provide reasonable assistance to Client in determining the causes of the reported problem. Reasonable assistance consists of an evaluation of the reported problem in order to determine if the problem is being caused by a TriTech Software issue or an issue with a Third Party Item that needs to be addressed by the applicable Vendor. As part of the evaluation process, TriTech will share with the Client non-proprietary information related to the diagnosis such as error messages, database trace information and other information that led TriTech to diagnose the Third Party Item as the likely cause and which may aid the Client in seeking a resolution from the applicable manufacturer or Vendor. For issues involving Windows O/S software (Microsoft) that City of Santa Ana Police Department System Purchase Agreement Copyright © 2016 TriTech Software Systems - Confidential & Proprietary IQ Desktop Applications Unpublished: Rights reserved under the copyright laws of the United States Page 7 of 13 251-16 generally affects the operation of the TriTech Software and is not caused by a Client specific installation or configuration of the O/S, TriTech will work with Microsoft to coordinate the resolution. Notwithstanding the above, TriTech is not and shall not be a party to such third party maintenance agreements nor shall TriTech have any obligation or liability thereunder. 9.0 LIMITATION OF LIABILITY 9.1 The total liability of TriTech for any claim or damage arising under this Addendum or renewals thereof, whether in contract, tort, by way of indemnification or under statute shall be limited to (i) direct damages which shall not exceed the Software Support fees paid under this Addendum by Client to TriTech for the twelve (12) month term during which the cause of action for such claim or damage arose or (ii) in the case of bodily injury or property damage for which defense and indemnity coverage is provided by TriTech's insurance carrier(s), the coverage limits of such insurance. 9.2 IN NO EVENT SHALL TRITECH BE LIABLE, WHETHER IN CONTRACT OR IN TORT, FOR LOST PROFITS, LOST SAVINGS, LOST DATA, OR ANY OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR NON-USE OF THE TRITECH SOFTWARE, OR OTHERWISE RELATED TO THIS ADDENDUM, REGARDLESS OF WHETHER TRITECH HAD KNOWLEDGE OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. 10.0 SEVERABILITY 10.1 If any term, clause, sentence, paragraph, article, subsection, section, provision, condition or covenant of this Addendum is held to be invalid or unenforceable, for any reason, it shall not affect, impair, invalidate or nullify the remainder of this Addendum, but the effect thereof shall be confined to the term, clause, sentence, paragraph, article, subsection, section, provision, condition or covenant of this Addendum so adjudged to be invalid or unenforceable. 11.0 FORCE MAJEURE/EXCUSABLE DELAY 11.1 Neither party shall be responsible for failure to fulfill its obligations hereunder or liable for damages resulting from delay in performance as a result of war, fire, strike, riot or insurrection, natural disaster, delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of Equipment or software from suppliers, default of a subcontractor or vendor to the party if such default arises out of causes beyond the reasonable control of such subcontractor or vendor, the acts or omissions of the other party, or its officers, directors, employees, agents, contractors, or elected officials, and/or other occurrences beyond the party's reasonable control ("Excusable Delay" hereunder). In the event of such Excusable Delay, performance shall be extended on a day for day basis or as otherwise reasonably necessary to compensate for such delay. City of Santa Ana Police Department Copyright © 2016 TriTech Software Systems — Confidential & Proprietary Unpublished: Rights reserved under the copyright laws of the United States System Purchase Agreement IQ Desktop Applications Page 8 of 13 251-17 12.0 CONSTRUCTION AND HEADINGS 12.1 The division of this Addendum into sections and the use of headings of sections and subsections are for convenient reference only and shall not be deemed to limit, construe, affect, modify, or alter the meaning of such sections or subsections. 13.0 WAIVER 13.1 The failure or delay of any party to enforce at any time or any period of time any of the provisions of this Addendum shall not constitute a present or future waiver of such provisions nor the right of either party to enforce each and every provision. 13.2 No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute consent to, waiver of or excuse for any other, different or subsequent breach. 14.0 ENTIRE AGREEMENT 14.1 This Addendum and its Exhibits or Amendment(s) represent the entire agreement between the parties hereto and a final expression of their agreements with respect to the subject matter of this Addendum and supersedes all prior written agreements, oral agreements, representations, understandings or negotiations with respect to the matters covered by this Addendum. 15.0 APPLICABLE LAW 15.1 Except to the extent that this Addendum is governed by the laws of the United States, this Addendum shall be governed, interpreted and enforced in accordance with the laws of the State of California without regard to its conflict of law provisions. 16.0 ASSIGNMENT 16.1 Neither party may assign this this Addendum without the prior written consent of the other party which consent shall not be unreasonably withheld. City of Santa Ana Police Department Copyright © 2016 TriTech Software Systems — Confidential & Proprietary Unpublished: Rights reserved under the copyright laws of the United States System Purchase Agreement IQ Desktop Applications Page 9 of 13 251-18 17.0 NOTICES 17.1 All notices required to be given under this Addendum shall be made in writing by (i) first-class mail, postage prepaid, certified, return receipt, (ii) by regularly scheduled overnight delivery, (iii) by facsimile or e-mail followed immediately by first-class mail, or (iv) by personal delivery, to the address set forth below, or such other address as provided in writing. Such notices shall be deemed given three (3) days after mailing a notice or one (1) day after overnight delivery thereof. To Client: 18.0 Modifications To TriTech: TriTech Software Systems 9477 Waples Street, Ste. 100 San Diego,CA 92121 Attn: Contracts 18.1 This Addendum may be modified or amended only by a writing duly executed by both Parties. City of Santa Ana Police Department Copyright © 2016 TriTech Software Systems — Confidential & Proprietary Unpublished: Rights reserved under the copyright laws of the United States System Purchase Agreement IQ Desktop Applications Page 10 of 13 251-19 Exhibit B — Support Guidelines Remote Connectivity 1. Technical Support will be performed through a remote connection. 2. TriTech recommends a VPN or Citrix's GoToMyPC or GoToAssist for remote connections. TriTech will be moving to Bomgar in the future for remote connections. 3. If the client is unable to provide a high speed remote connection, a fee will be incurred based on the additional time required for troubleshooting the support request. Support Hours Technical support phone hours are during the days of Monday through Friday, from 7AM to 5:30PM PST. Support is not available during the weekend. All calls should be directed to (800)228-1059 extension 117 or email requests to Omega-Support@TriTech.com. It is TriTech's intent to respond to all technical support requests within the first 24 hours of request during normal business hours. City of Santa Ana Police Department Copyright © 2016 TriTech Software Systems — Confidential & Proprietary Unpublished: Rights reserved under the copyright laws of the United States System Purchase Agreement IQ Desktop Applications Page 11 of 13 251-20 Addendum to TriTech Maintenance Program: Desktop Basic Support Plan The Basic Support Plan is intended to provide on -going software support for the original configuration of the TriTech Desktop product. This support plan includes the following: • TriTech software updates (minor) o Compatibility with the current AreGIS release o Updates for the TriTech Desktop software routines / functionality o Hotfixes • Assistance with the setup of TriTech Desktop on a new server and/or user's computer. • Provision of the current TriTech Desktop tutorial (digital format) • Diagnosis of TriTech Desktop software issuesi • Resolution of TriTech Desktop software errors • Diagnosis of Configuration issues • Resolution of Configuration errors • Saved Query Updates o Clients are entitled to two (2) saved query updates annually o Saved Query updates are by client request when new query values are made available The Basic Support Plan is NOT intended to provide services for the following tasks: Under the Basic Support Plan, the following requests for service will incur an additional cost: • Change RMS/CAD vendor(s) • RMS/CAD database schema updates (field length, type, size... table name change, etc...) • Lookup table updates (code/description) • Crystal Report updates • GIS source file updates • Geocoding rate enhancement • Re -import of historical data • Change the GIS format (Shapefile, Personal Geodatabase, File Geodatabase, ArcSDE Geodatabase, etc...) of the reference data or Import Wizard output data. ' "Software issues" include technical questions that are directly related to the TriTech Desktop software. "Software issues" do not include training -related questions. 2 `Software errors" include software problems that impede the successful completion of an TriTech Desktop routine (i.e. software bug and/or error message). ' "Configuration Issues" include questions that are directly related to the TriTech configuration files. "Configuration issues" do not include training -related questions. ' "Configuration Errors" include any mis-configuration of the original TriTech Desktop product that would impede the successful completion of an TriTech Desktop routine (i.e. error message). 5 Saved query updates are limited to the saved queries groups included within the original application configuration and based on the original source field. Adding a new saved query group(s) or changing the source field will incur an additional cost. City of Santa Ana Police Department System Purchase Agreement Copyright © 2016 TriTech Software Systems — Confidential & Proprietary IQ Desktop Applications Unpublished: Rights reserved under the copyright laws of the United States Page 12 of 13 251-21 • Add/remove Import Wizard profile fields • GIS editing • Other source file integration • Additional profiles • Consulting "Configuration Files" include the following: 1. The TriTech Import Wizard's profile configuration a. SQL Statement b. Composite fields c. TriTech GIS fields d. Lookup fields e. Data cleaning I. Spatial query g. Address locators h. Standardization fixes i. Geocoding steps j. Preferences k. Output steps 2. The TriTech Import Wizard job configuration (including scheduled task) 3. Crystal Reports 4. GIS and/or other data 5. Map configuration (.mxd & .mxt) 6. Cyclical Reports 7. Threshold Alerts City of Santa Ana Police Department Copyright © 2016 TriTech Software Systems — Confidential & Proprietary Unpublished: Rights reserved under the copyright laws of the United States System Purchase Agreement IQ Desktop Applications Page 13 of 13 251-22 Exhibit `B" 251-23 )))"rR17E=-CH SOFTWARE SYSTEMS 9477 Waples St, Suite 100 San Diego, CA 92121 Bill To: Santa Ana Police Department 60 Civic Center Plaza Santa Ana CA 92702 Quote,;, -.-:'. 10395 111112017 haja, Please Note New Remit -to Address: Tritech Software Systems P.O. Box 203223 Dallas, TX 75320-3233 Ship To: Santa Ana Police Department 60 Civic Center Plaza Santa Ana CA 92702 `-Purchase Order No. Customer ID '. salesperson ID k Shi "in Method Pa ment Terms Reg Ship Date Master No. CA305-0 I I Net 30 Days 1/11/2017 46,988 :Ordered i Shipped -:`BIO Item Number=Descrf tion Unit Price Ext. Price , 1.00 5.00 1.00 1.00 0.00 O-CRIMEMAPPING CrimeMapping.com 5.00 0.00 0-CV DESK ADD'L LIC MAU CrimeView Desktop Addt'I License Maintenance 1.00 0.00 O-CV DESK MAINTENANCE CrimeView Desktop Maintenance Term: 11/17/16 to 11/16/17 $1,200.00 $1,200.00 $150.00 $750.00 $3,200.00 $3,200.00 Subtotal- $5150.00 Misc 0.00 Taz. Freight -Trade Discount... Total $5 150.00 251-24 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: AGREEMENT WITH DR. MAUREEN SASSOON FOR OCCUPATIONAL, ENVIRONMENTAL HEALTH, AND SAFETY TRAINING AND CONSULTING SERVICES (STRATEGIC PLAN NO. 7,6) A �; 4��l CITIT M RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: E] As Recommended © As Amended E] Ordinance on 161 Reading E] Ordinance on 2nd Reading E] Implementing Resolution E] Set Public Hearing For CONTINUED TO FILE NUMBER 1. Authorize the City Manager and Clerk of the Council to execute an agreement with Dr. Maureen Sassoon for citywide occupational, environmental health, and safety training and consulting services for the term beginning February 21, 2017 through June 30, 2018, in an amount not to exceed $75,000, subject to non -substantive changes approved by the City Manager and City Attorney. The agreement includes a provision for a one-year term extension exercisable by the City Manager and City Attorney. 2. Authorize payment for services performed October 1, 2016 through December 31, 2016, under which the City exhausted all funds provided under a previous agreement. City intends that any sums owed to Dr. Maureen Sassoon shall be covered by this agreement. DISCUSSION The City's Risk Management Division considers workplace safety to be the number one priority. Approval of this recommend action will allow the Risk Management Division to maintain a compliant and comprehensive safety program. Having a comprehensive safety program reduces the risk of injuries for employees, contractors, and visitors; reduces liability and regulatory citations; and is cost effective. This program is an essential part of the agency's objective to provide a safe work environment. Occupational, environmental health, and safety management is a continuous improvement process. Dr. Sassoon will continue to work with the City's safety committee or other department - designated representatives to provide on -going risk and compliance assessments; review and revise policies and procedures; audit and evaluate programs; conduct training, job hazard analysis, facility and job site inspections, and industrial hygiene services. Dr. Sassoon's areas of expertise, educational and professional achievements are numerous. Dr. Sassoon is a registered environmental health specialist, certified industrial hygienist, certified lead and asbestos consultant and reserve deputy sheriff. She has provided consulting services to the City since March 2010 and has a comprehensive understanding of the City's health and safety needs. In evaluating other agencies (i.e., City of Anaheim, City of Huntington Beach) staff found that 25J-1 Agreement with Dr. Maureen Sassoon for Occupational, Environmental Health, and Safety Training and Consulting Services. February 21, 2017 Page 2 specialized services are managed by different individuals or consultants specializing in each area of compliance. Having a consultant that provides comprehensive services is cost effective. The City exhausted all funds provided for in the previous agreement due to unanticipated demands for the Consultant's services which resulted in increased expenses; this included a health and safety assessment of the Civic Center area. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #7 — Team Santa Ana, Objective #6 (Provide a positive workplace environment that supports the health of its employees and celebrates its success). FISCAL IMPACT Funds are available in the Liability & Property Insurance account (account no. 08009051-64010), Workers' Compensation account (account no. 08209054-64010), and additional agency accounts as authorized. Fiscal Year Amount 2016-17 $25,000 2017-18 $50,000 Edward Aaya J Executive Director Personnel Services ESR:bbm APPROVED AS TO FUNDS AND ACCOUNTS: I,It&k � 9 Al Francisco Gutierrez Executive Director Finance & Management Services Agency 25J-2 CONSULTANT AGREEMENT THIS AGREEMENT is made and entered into this 21" day of February, 2017 by and between Dr. Maureen Sassoon, MS, MPH ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of occupational and environmental health and safety consulting set -vices. B. Consultant represents that it is able and willing to provide such services to the City. C. The City acknowledges that it has received billing from Consultant under a previous agreement for set -vices performed October 1, 2016 through December 31, 2016, under which the City exhausted all funds provided for in the agreement. City intends that any unpaid sums owed to Consultant for prior services provided October 1, 2016 through December 31, 2016, shall be covered under this Agreement. The previous agreement with the Consultant terminated sooner than expected due to unanticipated demands for the Consultant's services which resulted in increased expenses. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional in the same field, NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform those services relating to occupational and environmental health and safety consulting services including but not limited to those services set forth in Exhibit "A", attached hereto and incorporated herein by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its set -vices, the rates and charges identified in Exhibit B. The total sum to be expended under this Agreement, shall not exceed $75,000.00 during the term of this Agreement. b. City acknowledges that agreement includes payment for services rendered October 1, 2016 through December 31, 2016. 25J-3 c. Payment by City shall be made within thirty (30) days 'following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on ,Tune 30, 2018, unless terminated earlier pursuant to Section 12, below. 'The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney for up to one (1) year. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an cmployce 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 its employees and shall be responsible for all applicable withholding taxes. S. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); and (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City. b. Worker's Compensation Insurance. In accordance with California State law, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of 25J-4 the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c, Professional Liability ('errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim and $2,000,000 annual aggregate shall be maintained, d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City. (ii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iii) If the Consultant maintains broader coverage and/or higher limits than the minimums described above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Consultant. e, If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to 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. 6. INDEMNIFICATION Consultant agrees to and shall indemnify, defend, and hold harmless the City, its officers, agents, employees, consultants, counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims: (1) for personal injury, including death, and claims for property damage, arising from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described hi 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 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. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for counsel to be selected by the City, regarding any action by a third party asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by 25J-5 reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant received 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 rightfid possession of the Consultant and disclosed 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. S. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of set -vices specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other cormarmication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-6956 Copies to: Executive Director of Personnel Services City of Santa Ana 20 Civic Center Plaza (M-24) 25J-6 To Consultant: P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-5311 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-6515 Dr. Maureen Sassoon, MS, MPH P.O. Box 2028 Palos Verdes Peninsula, CA 90274 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the teens of this Agreement shall prevail and will serve to fully supersede existing Agreement. 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 or conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement 25J-7 shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City with thirty (30) days written notice of termination to the Consultant. a. As a condition of such payment, the City may require Consultant to deliver to the City all the work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 13. NON DISCRIMINATION Consultant shall not discriminate because of race, color, creed, relation, 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 any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United Sates, 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. 25J-8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney LAURA ROSSINI Senior Assistant City Attorney RECOtNIMENDED FOR APPROVAL: EDWARD RAYA Executive Director Personnel Services Agency CITY OF SANLA ANA GERARDO MOUET Acting City Manager CONSULTANT DR. MAUREEN SASSOON, Sole Proprietor Im 25J-9 EXHIBIT A Scope of Services Provided by Dr Maureen Sassoon CIH to the City of Santa Ana 1. Conducting the City Safety Committee Meetings, pursuant to the City's Injury, Illness Prevention program (IIPP), approximately six times per year. 2. Employee Health & Safety Training (i.e,, Cal -OSHA mandated training) for City employees covering such topics as respiratory protection, hearing conservation, emergency action/fire response, hazard communication, hazardous waste, confined space, lockout/block out, supervisor safety inspections and accident investigations and hands-on defensive driving on private property, 3. Inspection services as needed by a Certified Asbestos Consultant, per the State of California. 4. Inspection services as needed from a Lead -Certified. California Department of Public Health Consultant, 5. A City -Wide Safety Inspection. 6. Advising the City and if necessary participating in representing the City's interests in issues involving Cal -OSHA. 7. Other third -party health and safety services on an as needed/required basis (i.e., employee work station ergonomic evaluations, indoor air quality surveys and noise surveys) as requested by Risk Management and/or Human Resources. 8. Conduct an audit of the existing loss control programs with recommendations for changes, as deemed necessary. 9. Other tasks as requested by the Executive Director of Personnel Services or her designee. 25J-" EXHIBIT B FEE AGREEMENT FOR OCCUPATIONAL & ENVIRONMENTAL HEALTH & SAFETY CONSULTING SERVICES For the CITY of SANTA ANA DR. MAUREEN SASSOON, MS, MPH 310/544-2912 Certified Industrial Hygiene Fees: 1. General industrial hygiene services (excluding legal cases) are charged at a rate of $150/hour, portal-to-portal, with a 4-hour minimum, Additional charges, such as but not limited to: equipment and laboratory fees, printing and duplicating fees, data base fees (i.e., such as are associated with Phase I research), and travel related fees (i.e., airfare, hotel, car rental) are charged to the client per associated incurred cost, if the client pays them direct or up front, otherwise there is a 10% mark-up. Invoices are submitted monthly, for services rendered, and are expected to be paid in -full, within 30 days of the invoice date. Account balances not paid within 30 days are subject to a 1.5% monthly service charge, on the remaining balance. 2. General office work, report writing and research are charged at $150/hour. 3. Legal Cases, including preparation, document review, research, industrial hygiene surveys and all other related work including Court time (with or without testimony) and Depositions are charged at a rate of $450/hour, with a 4-hour minimum, plus expenses if outside the greater Los Angeles area. 4. Deposition and Court fees are due at the beginning of each day If you agree to these terms and conditions, please sign and date at the bottom and reply by USPS to Dr. Maureen Sassoon at PO Box 2028, PVP, CA 90274. Company: (Signature) (Print Name) (Effective: January 2016) Title Date 25J-11 25J-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: DONATION AGREEMENT WITH THE NEIGHBORHOOD HOUSING SERVICES OF ORANGE COUNTY INC. FOR THE MINI-TOWNSEND COMMUNITY RESOURCE FAIR EVENT (STRATEGIC PLAN NO. 5,4) ' A RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: :"•;..., ❑ As Recommended ❑ As Amended ❑ Ordinance on tat Reading Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Neighborhood Housing Services of Orange County Inc. for the Mini -Townsend Community Resource Fair event for a one-time donation amount of $500, subject to nonsubstantive 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 $500 to Neighborhood Housing Services of Orange County Inc. to support the Mini -Townsend Community Resource Fair event that will be held on Saturday, February 25, 2017, in response to their approval of this item, a donation agreement (Exhibit 2) will be donation request (Exhibit 1). Upon executed. 29A-1 Donation Agreement with Neighborhood Housing Services of Orange County Inc. for the Mini -Townsend Community Resource Fair February 21, 2017 Page 2 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). FISCAL IMPACT Funds to support the City Council Sponsorship Policy are available in the Fiscal Year 2016-17 General Non -Departmental account (01106016-62300). The $500 will be spent from Councilmember Tinajero's appropriated amount for FY 2016-17. AS TO FUNDS AND ACCOUNTS: Executive Director Finance and Management Services Agency Exhibits: 1. Donation Request Form 2. Donation Agreement 29A-2 City of Santa Ana Donation Request City Manager's Office - M-31 20 Civic Center Plaza P.O- Box 1988 Santa Ana, CA 92702 (714) 647-5200 IName. ---IJackson Wright F',I a. -Development Associate Address: 128 E. Katella Suite 200 City, zip: --[Phone. Orange CA 92867 4 - �Oli - 9313 [Emall: )acksonw@nwoc.org 408 - [Nana: FNewl�ghbofflorks Orange County Tax -Exempt Status: Is your organization a non-profit or public tax-exempt organization as defined under Section 501(c)(3) of the Internal Revenue Code? �IS�eI'e-ct One: r yes ❑ No If No, you will only qualify fora credit for City -related costs for your request (i.e. permit fees, staff time, rental rates tortacifitlea or equipment, etc.).Costs for Cityservices vary and if Ify I Yes, approved, credit may or may not cover full cost of requested City services. �ax ID #: 195-3130152 11r. MIM. Ity Services 500 DataFm Credit Needed: � y,,/C,,nilmember: Tinalero Requested: F Event Date: I vent Time: Dam - 1 pm — Requested: :Ve Ver t L1111ticur: r 00 Block South Townsend St. Santa Ana 92704 Address, City, State, Zip *Event Summary and Community Benefit attached Description of Event / Purpose: Event Summary and Community Benefit attached. CommunityBenefit: �0 Mail: City Manager's Office - M-31 Email: donationrequest@santa-ana.org 20 Civic Center Plaza Fax: (714) 647-6954 P.O. Box 1968 Santa Ana, CA 92702 Donation Request it. DR - Council Meeting Date: ------- ---- -- --------- li Eligibility Met: YES NO Approved Amount: City Manager Signature:Date Revised 01105/2017 29A-3 h e: h1� ��� Y o 25 de Febrero '4 i f S. Townsend TM�`e i i`iE C mum R S 0 w Fit P r62 � v h �, rs'''�� ui a- - 1p V�r�'% d e Na t yes �eO rserd •�V� �:Qa�a .\,�o�N Para ma's inforrn�n,,4lame a Marina Ramirez (714) 409-3431, Elizabeth Martinez (714) 561-8709, o Patty Dabalos (714) 754-5707 a I a Ompimair Apn;lmte.w��, Oq? ae e6y-e5N U�•. J OW/W lawavy �to) I, a � an For more information2MU5rina Ramirez (714) 409-3431, Elizabeth Martinez (714) 561-8709, or Patty Dabalos (714) 754-5707 Mini Townsend Resource Fair February 25th 2017 Tyoes of Needed Services Identifed by Residents CONFIRMED (as of 2/3/17) PENDING Trabajos para AdultosJ6venes/Job Training for Young Adults Taller San Jose Art, Music, amd Culture/Arte, MGsica, y Cultura Radio Santa Ana, El Centro Renters Rights/Derechos de Inquilinos Fair Housing Council Immigration/Inmigraci6n Mexican Consulate DACA Camino Immigration Services Health Insurance/Seguro de Salud Community Health Initiative of OC Family Health/Salud para la Familia Latino Health Access Youth Services/Servicios Para J6venes Kidworks Dentista/Dentist Smiles for Kids of OC Drug and Alcohol Abuse/Servicios Para el Abuso de Drogas y Alcohol OC Health Care Agency Financial Fitness NeighborWorks Parent Education/Educacion para los Padres Padres Promotores Police Relations Rights/Conocer sus Derechos sobre asuntos con la Policia RAIZ or Resiliant OC Caminar y andar en Bicicleta a la escuela con seguridad/Bicycle and Pedestrian Safety Santa Ana Active Streets Aplicaci6n de Estacionamiento/Parking Issues and Pedatory Towing Santa Ana Police Department Building Health Communities Tierras Communitarias Heritage Musem The Salvation Army OC Human Relations Santa Ana Unified School District 29A-6 CITY OF SANTA ANA DONATION AGREEMENT WITH NEIGHBORHOOD HOUSING SERVICES OF ORANGE COUNTY INC. 1. PARTIES AND DATE This Donation Agreement ("Agreement") is entered into on FEBRUARY 21, 2017 by and between the City of Santa Ana, a municipal corporation ("City") and NEIGHBORHOOD HOUSING SERVICES OF ORANGE COUNTY 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 THE MINI-TOWNSEND COMMUNITY RESOURCE FAIR ("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 PROMOTE HIGHER EDUCATION, FINANCIAL INFORMATION, EMPLOYMENT OPPORTUNITIES, HOUSING ASSISTANCE RESOURCES, AND SOCIAL, SERVICES RESOURCES. 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. TERMS AND CONDITIONS 3.1 Use of Funds. The City has chosen to provide Recipient with a one-time payment of FIVE HUNDRED DOLLARS ($500) for an event that will be held on Saturday, February 25, 2017, because the City has determined that there is a public purpose to be served in supporting the Community Benefit. In executing this Agreement and receiving the funds, Recipient agrees to use the funds only for the purpose described and subject to the terms and conditions provided for in this Agreement. Should Recipient fail to use the funds for such purpose or otherwise comply fully with the terms 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 Term; Ternunation of Agreement. This Agreement shall take effect on the date first above written and remain in effect through Recipient's full 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 funds 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. 2W CITY of 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 trauma 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 willful 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 29A-8 CITY OF SANTA ANA DONATION AGREEMENT Page 3 of 3 By: FOR APPROVAL Robert C. Cortez Deputy City Manager City Manager's Office CITY OF SANTA ANA By: Gerardo Monet Acting City Manager Attest: By: Maria D. Huizar Clerk of the Council Approved as to Form: By: r M. Funk Assistant City Attorney NEIGHBORHOOD HOUSING SERVICES OF ORANGE COUNTY INC. a 501(c)3 NON-PROFIT ORGANIZATION By: Signature Name: Jackson Wright Title: Development Associate 2�T J 29A-10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: DONATION AGREEMENT WITH THE NEIGHBORHOOD HOUSING SERVICES OF ORANGE COUNTY INC. FOR THE MINI-TOWNSEND COMMUNITY RESOURCE FAIR EVENT (STRATEGIC PLAN NO. 5, 4) f 006.0 ✓ L/i4i..:YY,r1�1 RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 16' Reading ❑ Ordinance on 2nd Reading Ll Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with the Neighborhood Housing Services of Orange County Inc. for the Mini -Townsend Community Resource Fair event for a one-time donation amount of $500, subject to nonsubstantive 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 Benavides recommends appropriating $500 to Neighborhood Housing Services of Orange County Inc. to support the Mini -Townsend Community Resource Fair event that will be held on Saturday, February 25, 2017, in response to their donation request (Exhibit 1). Upon approval of this item, a donation agreement (Exhibit 2) will be executed. 29B-1 Donation Agreement with Neighborhood Housing Services of Orange County Inc. for the Mini -Townsend Community Resource Fair February 21, 2017 Page 2 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). FISCAL IMPACT Funds to support the City Council Sponsorship Policy are available in the Fiscal Year 2016-17 General Non -Departmental account (01105015-62300). The $500 will be spent from Councilmember Benavides appropriated amount for FY 2016-17. APPRQA/ED AS TO FUNDS AND ACCOUNTS: Executive Director Finance and Management Services Agency EXHIBITS: 1. Donation Request Form 2. Donation Agreement 29B-2 City of Santa Ana y City Manager's Office -M-31 20 Civic Center Plaza "^ Donation Request P.O. Box 1988 Santa Ana, CA 92702 -- (714) 647.5200 a Name: IJackson Wright development Associate ddress: 128 E. Katella Suite 200 City, State, Zip: (Orange CA 92867 �IPhone: (714 - 408 - 9313 — Emau: )acksonw@nwoc.org Fax: r�. 714 - 408 - 9863 ---— —-------- -- --- — --- ------- — -- Name: NewighborWorks Orange County Tax -Exempt Status: Is your organization a non-profit or public tax-exempt organization as defined under Secti501(c)(3) of the Internal Revenue Code? elect one-- FRI Yes ❑ No ff No, you will only qualify for a credit for City -related costs for your request (i. e, permit fees, rf Yes`--"`----_ staff time, rental rates for facilities or equipment, etc.). Costs for City services vary and if -approved, credit may or may not cover full cost of requested City services. ex ID #:�95-3130152 - - -- �-- — -- (City Services Credit $500 Date Needed: MayorlCouncfimember: Benavides T 44mount Requested: Direct Payment Amount �Re nested: —^ — Event Date; Zi25i2017 (Event Time: — - 1OSfTI - 1pm ent t.ncation: r 1400 Block South Townsend St. Santa Ana 92704 dress, City, State, Zip *Event Summary and Community Benefit attached Description of Event l Purpose: rEvent Surpmary and Community Benefit attached. Community Benefit: 11/ 1 p Applloan }gtgnafure ate I — i.. - Mari: City Manager's Off ce-M-3�` (Email: donationrequest®santa•ana.org 20 Civic Center PI a f Fax: (714) 647,6954 P.O. Box 1988 Santa Ana, CA 92702 e Donation Request #: DR - Reference # an a!I related DPVs Council Meeting Date. _ Eligibility Met YES I NO Approved Amount -_....i-_ _._- City Manager Signature Date ... ____. .. ....... ._-..__. J Revised 01/0512017 �A♦ci e s �'daer�.es a r N �es� ser r% ssa-AR, gd C.�iu 43t r s` x Sa'bado, 25 de Febrero 4 o . S. Townsend 10a 1pm - ti�, R I AY c' My3\�u wyR F�W C mum Rt'affft 0 if k Jtl r� ioi Ito uai �' o "�a �s� a b� 4ol Para mas inforr2gW41ame a Marina Ramirez (714) 409-3431, Elizabeth Martinez (714) 561-8709, o Patty Dabalos (714) 754-5707 Aennf'�tcd lk'l- 10am - 1pm AEFOW ssm-� L wp aR E wAm 0 V "R !, a c; a I , 11, 0 "aw �t a N co C For more informatior29BL!Srina Ramirez (714) 409-3431, Elizabeth Martinez (714) 561-8709, or Patty Dabalos (714) 754-5707 Mini Townsend Resource Fair February 25th 2017 Tyoes of Needed Services Identifed by Residents CONFIRMED (as of 2/3/17) PENDING Trabajos Para Adultos J6venes/Job Training for Young Adults Taller San Jose Art, Music, amd Culture/Arte, Musica, y Cultura Radio Santa Ana, El Centro Renters Rights/Derechos de Inquilinos Fair Housing Council Immigration/Inmigraci6n Mexican Consulate DACA Camino Immigration Services Health Insurance/Seguro de Salud Community Health Initiative of OC Family Health/Salud para la Familia Latino Health Access Youth Services/Servicios para J6venes Kidworks Dentista/Dentist Smiles for Kids of OC Drug and Alcohol Abuse/Servicios Para el Abuso de Drogas y Alcohol OC Health Care Agency Financial Fitness NeighborWorks Parent Education/Educacldn para los Padres Padres Promotores Police Relations Rights/Conocer sus Derechos sobre asuntos con la Policia RAIZ or Resiliant OC Caminar y andar en Bicicleta a la escuela con seguridad/Bicycle and Pedestrian Safety Santa Ana Active Streets Aplicaci6n de Estacionamiento/Parking Issues and Pedatory Towing Santa Ana Police Department Building Health Communities Tierras Communitarias Heritage Musem The Salvation Army OC Human Relations Santa Ana Unified School District r•- CITY OF SANTA ANA DONATION AGREEMENT WITH NEIGHBORHOOD HOUSING SERVICES OF ORANGE COUNTY INC. 1. PARTIES AND DATE This Donation Agreement ("Agreement") is entered into on FEBRUARY 21, 2017 by and between the City of Santa Ana, a municipal corporation ("City") and NEIGHBORHOOD HOUSING SERVICES OF ORANGE COUNTY 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 THE MINI-TOWNSEND COMMUNITY RESOURCE FAIR ("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 Ptrrposq. The City, by recommendation of COUNCILMEMBER DAVID BENAVIDES, believes there is a public purpose in supporting the Community Benefit because it will PROMOTE HIGHER EDUCATION, FINANCIAL INFORMATION, EMPLOYMENT OPPORTUNITIES, HOUSING ASSISTANCE RESOURCES, AND SOCIAL SERVICES RESOURCES. 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. TERMS AND CONDITIONS 3.1 Use of Funds. The City has chosen to provide Recipient with a one-time payment of FIVE HUNDRED DOLLARS ($500) for an event that will be held on Saturday, February 25, 2017, because the City has determined that there is a public purpose to be served in supporting the Community Benefit. In executing this Agreement and receiving the funds, Recipient agrees to use the funds only for the purpose described and subject to the terms and conditions provided for in this Agreement. Should Recipient fail to use the funds for such purpose or otherwise comply fully with the terms 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 Term; Tenzzination of Agreement. This Agreement shall take effect on the date first above written and remain in effect through Recipient's full 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 funds 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. 2W� CITY OF SANTA ANA DONATION AGREEMENT Page 2 of 3 3.3 Waivers, Insurance or Other Obliyations, 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 trauma 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 willful 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 29B-8 CITY OF SANTA ANA. DONATION AGREEMENT Page 3 of 3 RECOMMENDED FOR APPROVAL By: Robert C. Cortez Deputy City Manager City Manager's Office CITY OF SANTA ANA 55 Attest: By: Gerardo Mouet Acting City Manager Maria D. IIuizar Clerk of the Council Apt)roved as to Form: By�— J(ffin M. Funk Assistant City Attorney NEIGHBORHOOD HOUSING SERVICES OF ORANGE COUNTY INC. a 501(c)3 NON-PROFIT ORGANIZATION By: Signature Name: Jackson Wright Title: Development Associate 2b1T �9 29B-10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: DONATION AGREEMENT WITH CHARITABLE VENTURES OF ORANGE COUNTY INC.— PROJECT KINSHIP {STRATEGIC PLAN NO. 5,4) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 a' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with the Charitable Ventures of Orange County Inc. for on -going community outreach and adult education clinics for a one-time donation amount of $1,000, subject to nonsubstantive 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. Mayor Pro Tern Martinez recommends appropriating $1,000 to Charitable Ventures of Orange County to support the Project Kinship in providing on -going community outreach and educational clinics for adults, in response to their donation request (Exhibit 1). Upon approval of this item, a donation agreement (Exhibit 2) will be executed. 29C-1 Donation Agreement with Charitable Ventures of Orange County Inc. February 21, 2017 Page 2 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). FISCAL IMPACT Funds to support the City Council Sponsorship Policy are available in the Fiscal Year 2016-17 General Non -Departmental account (01105015-62300). The $1,000 will be spent from Mayor Pro Tern Martinez appropriated amount for FY 2016-17. AS TO FUNDS AND ACCOUNTS: Frandikco Gutierrez Executive Director Finance and Management Services Agency EXHIBITS: 1. Donation Request Form 2. Donation Agreement 29C-2 City of Santa Ans� Donation Request Address; _ / ,!�i! - i . ;City, 5cata, ZIP: I� �nAifl, Art&- , Nama; I ot 17 V s 1phone: p_ ____ np8 taros: is your organization a nun -profit or public fax -exempt arg ilon as � ct Oil Ider Section 501(c)(3) of the internal Revenue Code? will onlyquaBfy for a credit for City -related costs for your request (f.e, permit fees, �---'-- rental rates for facilities or equipment, etc.). Costs for City services vary and if f Yes, credit may or may not cover full cost of requested Ch y services. a% ID #: iCityServices Credit Amount Requested: i joirect Payment Amount I / �Requested: / fVUV Event Location I Address, Cfty, State Zip , r City Manager's office - M-31 20 Civic Center Plaza P.O. BOX 1936 Santa Ana, CA 92702 (714) 647--5200 Time: Ilan of I p Purpose: 0 &t&L rTQ,7t- lldi&t . i Benefit: 891 Il LK t Mail: City Manager's Office — M-31 20 Civic Center Plaza P.O. BOX 1988 Santa Ana, CA 92702 M Emall: donationrequest®aantaana.org Pax: (714) 647.6954 Donation Request #: oR Referpre ?aM a.'t rsA-bziPP4a t Council fdoefing Date: Eligibility Mat: YES 7 Np `^ Approved Amount: —_ ro ., City Manager Signatures I Date: Revised 01A IMI7 29C-4 CITY OF SANTA ANA DONATION AGREEMENT WITH CHARITABLE VENTURES OF ORANGE COUNTY INC. 1. PARTIES AND DATE This Donation Agreement ("Agreement") is entered into on FEBRUARY 21, 2017 by and between the City of Santa Ana, a municipal corporation ("City") and CHARITABLE VENTURES OF ORANGE COUNTY 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 COMMUNITY OUTREACH, ADULT EDUCATIONAL CLINICS AND LEGAL REPRESENTATION INFORMATION ("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 MAYOR PRO TEM MARTINEZ, believes there is a public purpose in supporting the Community Benefit because it will PROMOTE ADULT EDUCATION, LEGAL RESOURCES, EMPLOYMENT OPPORTUNITIES, TRAINING OPPORTUNITIES AND SOCIAL SERVICES RESOURCES. 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. TERMS 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 the on -going community outreach and adult educational clinics, because the City has determined that there is a public purpose to be served in supporting the Community Benefit. In executing this Agreement and receiving the funds, Recipient agrees to use the funds only for the purpose described and subject to the terms and conditions provided for in this Agreement. Should Recipient fail to use the funds for such purpose or otherwise comply fully with the terms 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 Term; Termination of Agreement. This Agreement shall take effect on the date first above written and remain in effect through Recipient's full 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 funds provided to Recipient pursuant to this Agreement, as well as interest at the rate of ten percent (10%) per amnun. Notwithstanding the foregoing, the indemnification provisions of this Agreement shall survive any expiration or termination of this Agreement. 2§'C_t CITY OF 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 fiords 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 ail 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 trauma 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 willful 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 29C-6 CH orSANTA ANA DONATION AGREEMENT Page 3 of 3 RECOMMENDED FOR APPROVAL By: Robert C. Cortez Deputy City Manager City Manager's office CITY OF SANTA ANA By: Attest: By: Gerardo Mouet Acting City Manager Maria D. Huizar Clerk of the Council Approvect as to Form: By: _ Jo NI. Fuck Assistant City Attorney CHARITABLE VENTURES OF ORANGE COUNTY INC. a 50I(c)3 NON-PROFIT ORGANIZATION By: Signature Name: Steve Kies Title: Director ww 29C-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: DONATION AGREEMENT WITH SANTA ANA ATHLETIC FOUNDATION FOR THE SANTA ANA HIGH SCHOOL FOOTBALL TEAM EVENT (STRATEGIC PLAN NO. 5,4) CITY AANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: I'_1=160MIX ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2Id 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 the Santa Ana Athletic Foundation for the Santa Ana High School Football California Interscholastic Federation Finalist Celebration event for a one-time donation amount of $1,000, subject to nonsubstantive 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. Mayor Pro Tern Martinez recommends appropriating $1,000 to Santa Ana Athletic Foundation to support Santa Ana High School Football Team's California Interscholastic Federation (CIF) finalist celebration event that occurred on January 28, 2017 in Downtown Santa Ana, in response to their donation request (Exhibit 1). Upon approval of this item, a donation agreement (Exhibit 2) will be executed. 29D-1 Donation Agreement with Santa Ana Athletic Foundation For the Santa Ana High School Football Team Event February 21, 2017 Page 2 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). FISCAL IMPACT Funds to support the City Council Sponsorship Policy General Non -Departmental account (01105015-62300) Tern Martinez 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 are available in the Fiscal Year 2016-17 The $1,000 will be spent from Mayor Pro 29D-2 a City Manager's Office — M-31 City of .Santa Ana 20 Civic Center Plaza Donation Request P.O. Box 1988 Santa Ana, CA 92702 -- (714) 647.5200 m m fNama: mlLorenLighthall ride: [AssistantPrincipal Address: 520 W Welnut _ City, State, zip: Santa Ana, CA, 92701 Phone: 714-567-4902 Email: —� loren.lighthal@sausd.us� Fax: [715-567-4952—�� a Information Name: [Santa Ana Athletic Foundation Tax -Exempt Status: Is your organization a non-profit or public tax-exempt organization as S elect One: — defined under Section 501(c)(3) of the Internal Revenue Code? r F Yes No If No, you will only qualify for a credit for City -related costs for your request (i. e. permit fees, If Yes, staff time, rental rates for facilities or equipment, etc.). Costs for City services vary and if (� 36 (� 5 approved, credit may or may not cover full cost of requested City services. Tax ID #: V V V J `— _ ✓�9121 Donatton, Resuest City Services Credit �^(T � r $ 1 000 Date Needed: ASAP MayorlCouncilmember: Martinez ^ Amount Requested: + Direct Payment Amount $ 1 000 Event Date: Requested: [01 /28/2017 _ f Event Time: �1:30-4:30 Ev°nt°tali°"' 'Yost Theater, 307 N. Spurgeon, Santa Ana, CA 92701 Address, Cify, State, Zip Description of SANS Football Celbration - 1st time in 30 years an SAUSD high school has been Event I Purpose: to the CIF finals in football Hundreds of community members will engage in a celebration in Downtown Santa Community Benefit: Ana, providing an economic boost and demonstrate positive pride in the City. Applicant Signature:. _. v10ate:__101 /26/2017 - all: City Manager's Office—M-31 Email: donationrequest@santa•ana.org 20 Civic Center Plaza Fax: (714) 647-6954 P.O. Box 1988 Santa Ana, CA 92702 r2e,erenre k an a,(rela:2tl Dr^VF � I Donation Request [ #: DR - Council Meeting Date: _ [Eligibility Met. YES I NO Approved Amount: LCity Manager Signature: — Date: --) Revised 01/05/2017 rAIJ wg%� 29D-4 CITY OF SANTA ANA DONATION AGREEMENT WITH SANTA ANA ATHLETIC FOUNDATION 1. PARTIES AND DATE This Donation Agreement ("Agreement") is entered into on FEBRUARY 21, 2017 by and between the City of Santa Ana, a municipal corporation ("City") and SANTA ANA ATHLETIC FOUNDATION, 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 SANTA ANA HIGH SCHOOL FOOTBALL TEAM CELEBRATION EVENT IN DOWNTOWN SANTA ANA FOR BEING A CALIFORNIA INTERSCHOLASTIC FEDERATION (CIF) FINALIST ("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 P ose, The City, by recommendation of MAYOR PRO TEM MARTINEZ, believes there is a public purpose in supporting the Community Benefit because it will PROMOTE AN ECONOMIC BOOST TO THE DOWNTOWN AREA AND DEMONSTRATE POSITIVE PRIDE IN THE COMMUNITY. 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. TERMS 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 the on -going community outreach and adult educational clinics, because the City has determined that there is a public purpose to be served in supporting the Community Benefit. In executing this Agreement and receiving the funds, Recipient agrees to use the funds only for the purpose described and subject to the terms and conditions provided for in this Agreement. Should Recipient fail to use the funds for such purpose or otherwise comply fully with the terms of this Agreement, City shall have the right to terminate this Agreement and demand the return of the fiords pursuant to Section 3.2 below. 3.2 Term, Termination of Agreement. This Agreement shall take effect on the date first above written and remain in effect through Recipient's full 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 hinds provided to Recipient pursuant to this Agreement, as well as interest at the rate of ten percent (10%) per anmun. Notwithstanding the foregoing, the indemnification provisions of this Agreement shall survive any expiration or termination of this Agreement. CITY OF 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 CitX. Nothing in this Agreement shall be implied or interpreted as City establishing or providing oversight, control or approval of the Conummity Benefit or any activities conducted by the Recipient. 3.5 Indemnification. Recipient understands, acktrowledges and agrees that Recipient shall assume all risks associated with the Community Benefit, including, but not limited to, the possibility of death or serious trauma 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 Conummity 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 willful 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 vohmteers, 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 EXHIBIT 2 29D-6 CITY OF SANTA ANA DONATION AGREEMENT Page 3 of 3 individuals who have signed this Agreement have the legal power, right and authority to make this Agreement bind each respective Party. RECOMMENDED FOR APPROVAL an Robert C. Cortez Deputy City Manager City Manager's Office CITY OF SANTA ANA By: Gerardo Mouet Acting City Manager Attest: By: Maria. D. Huizar Cleric of the Council Approved as to Form: JOV M. Funk Assistant City Attorney SANTA ANA ATHLETIC FOUNDATION a 501(c)3 NON-PROFIT ORGANIZATION By: Signature Name: Loren Lighthall Title: Assistant Principal P -� •1 p4lorge REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: DONATION AGREEMENT WITH ARTS ORANGE COUNTY FOR SANTA ANA SITES PUBLIC CONCERTS (STRATEGIC PLAN NO. 5, 4) 'Norl Ed 01r. 01 10 - Z CITY MANA6ER 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 an agreement with Arts Orange County for the Santa Ana Site public concert events for a one-time donation amount of $3,500, subject to nonsubstantive 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. Mayor Pulido recommends appropriating $3,500 to Arts Orange County to support three Santa Ana Sites public concerts that will be held on from May 4-20, 2017, in response to their donation request (Exhibit 1). Upon approval of this item, a donation agreement (Exhibit 2) will be executed. 29E-1 Donation Agreement with Arts Orange County for Santa Ana Sites Public Concerts February 21, 2017 Page 2 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). FISCAL IMPACT Funds to support the City Council Sponsorship Policy are available in the Fiscal Year 2016-17 General Non -Departmental account (01105015-62300). The $3,500 will be spent from Mayor Pulido 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 29E-2 am City of Santa Ana Donation Request 'Name: ;Rick Stein iAddreaa: 17620 Fitch Avenue Suite 255 _ _ � - -. �- ----- 'city, state, zip. !Irvine, CA 92614-6081 Orange County City Manager's Owe- M-31 20 Civic Center Plata P.o. Sox 1990 Santa Ana, CA 92702 (714) 6475200 Title: ,President & CEO Peano: 714,556.5160 Fax: 714,666.5099 Tax�Exampt Status: lsyaur orpanizatfon anon -profit or pubes fazaxarnpt or9anizailon as moat Ono: Idatinad under SealWn 501(0)(3) ottna Internal Revenue coda? You No ; f lava,You "Ionly qualityfor a credit WCRy-relaled costs for yourregaastfl.a. perm7treea, Qry('� - l ,stalf0ma:-rantat rates for focitYNes orequipment otC).Costs forCifyservfaea vary and if df Yoe' 33-(} p(,t�(,Y ,0ppravad, cradit mayor maynot Cover full Cost of requested City sorwres Tax 10 p: a7 V G7lJ +Z It Ro ueste : bate Neadsd: !March 2, 2017 MayorlCounatlmembor: {Pultdo It Roquastad:. /}� V PaymonlAmount vontOats :ilf12r4 May ZO ,EventTrma: ;T8ri , sled Location; Church o the Messiah - 614 N. Bush St, Santa Ana CA 92701 & Frida Cinema 305 E. 4th St, {j v 6nu ScareZIP Santa Ana CA 92701 & Bowers Museum - 2002 N. Main St, Santa Ana, CA 92706 Santa Ana Sites will present three publicconcertsfrom May 4-May 20. Santa Ana Sites is a spoon of Icommunity partnership, presenting performances in public and private spaces in Santa Ana. Arts / Purpose: Orange County will act as fiscal receiver for the projects. -M•31 P.O. Box less j Santa Ana, CA 92702 Ace SRO Past Sims Elfitiwufl'y Mat city managar 819"Ituro: ormoamba commonly by onrnuroHirp the dternwry htdwrsoamirhmpnlsahe i acmgvmc. koapina admissen pnmhharmnhlylva •pdwerenpo horn hhobwider wllipla hiyi tlsHalryproehplhHmmn, eheddirgpovitivo llHM on alo 9w,b,6nahulbal i .. r_.� ._......... Small: donatlonrageastillisanta-ana.org j Pax: (714) 647.6954 , ? Council moatIn9.Araht' A paovail Amount^. _....� 1 pate! Revised 01/05/2017 29E-3 29E-4 CITY OF SANTA ANA DONATION AGREEMENT WITH ARTS ORANGE COUNTY 1. PARTIES AND DATE This Donation Agreement ("Agreement") is entered into on FEBRUARY 21, 2017 by and between the City of Santa Ana, a municipal corporation ("City") and ARTS ORANGE COUNTY, 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 THREE PUBLIC CONCERTS AS ORGANIZED BY SANTA ANA SITES ("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 MAYOR PULIDO, believes there is a public purpose in supporting the Community Benefit because it will PROMOTE ARTS IN THE COMMUNITY, ENCOURAGE THE DISCOVERY OF DIVERSE ENVIRONMENTS AND CULTURE. 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. TERMS AND CONDITIONS 3.1 Use of Funds, The City has chosen to provide Recipient with a one-time payment of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500) for a series of three public concerts that will be held from May 4-20, 2017, because the City has determined that there is a public purpose to be served in supporting the Community Benefit. In executing this Agreement and receiving the fimds, Recipient agrees to use the funds only for the purpose described and subject to the terms and conditions provided for in this Agreement. Should Recipient fail to use the funds for such purpose or otherwise comply fully with the terms 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, ement, This Agreement shall take effect on the date first above written and remain in. effect through Recipient's full 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 funds 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. 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 2��Tt CITY OF SANTA ANA DONATION AGREEMENT Page 2 of 3 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 Oversi¢ht by Cam, 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 trauma 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 acid 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 willful 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 tennination 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 perforin 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 29E-6 CITY OF SANTA ANA DONATION AGREEMENT Page 3 of 3 RECOMMENDED FOR APPROVAL Robert C, Cortez Deputy City Manager City Manager's Office CITY OF SANTA ANA M Attest: Gerardo Mouet Acting City Manager Maria D, Huizar Clerk of the Council Approved as to Form: By: arz, lbs. Z.44_ Jfjn M. Funk Assistant City Attorney ARTS ORANGE COUNTY a 501(c)3 NON-PROFIT ORGANIZATION to Signature Name: Rick Stein Title: President & CEO T 7 29E-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED TRANSFER OF WATER LINE ❑ As Recommended EASEMENT ❑ As Amended El Ordinance on Reading 2700 NORTH MAIN STREET ( ) 20nance on a Reading [IOOrdinance (STRATEGIC PLAN NO. 3,2) ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER CITY 101 ER Authorize the City Manager and Clerk of the Council to execute a quitclaim deed relinquishing the City's interest in a water line easement at 2700 North Main Street to 2700 N Main LLC, a California limited liability company. DISCUSSION A 10-foot-wide easement for water line purposes crosses the property at 2700 North Main Street (Exhibit 1). The City no longer has a water line within the easement strip. Water lines exist along Main Street and Main Place Drive. The applicant, 2700 N Main LLC, is requesting the easement be quitclaimed to facilitate the future development of the site. It is recommended that the 10-foot- wide easement be quitclaimed to the applicant. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Objective #2 (create new opportunities for business/job growth development through new General Plan and Zoning Ordinance policies). FISCAL IMPACT There i nno fisca impact associated with this action. , C,,- rredMousavipour Executive Director Public Works Agency Exhibit: 1. Map 2. Quitclaim Deed Economic Development, and encourage private 30A-1 30A-2 0 10'1 1 15' 52' I N ! ttU I L.I. N( (T of ro N _ I 550' PL MAIN PLACE DRIVE 50' LEGEND: AREA TO BE QUITCLAIMED EXHIBIT 1 SANTA ANA Title; P�� Agenda Council QUITCLAIM OF WATER EASEMENT nda Doles Februory 21, 201' 2700 NORTH MAIN STREET me row . Kv 1 n n w n 30A-4 When recorded, please mail this Instrument 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 EXHIBIT 2 SPACE ABOVE THIS LINE FOR RECORDER'S USE Cancel Approved AS TO Approved By DcecAptlon Deserts tion A.P, [lumberR/W Map Number Project Taxes Form BY Ally. Director Written BY Checked-O.K. Number G,T,S. A.C. 002-210-44 NW 162 QUITCLAIM DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF SANTA ANA, a Charter City and Municipal Corporation of the State of California Does Hereby Remise, Release, and Forever Quitclaim to: 2700 N Main LLC, a California limited liability company ALL RIGHTS, TITLE AND INTEREST in and to the real property in the City of Santa Ana, County of Orange, State of California, described in Exhibit "A" attached hereto and by this reference made a part hereof, and as shown on Exhibit "Ba, attached hereto and incorporated herein. 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. Dated: STATE OF CAUFORNIA COUNTY OF 7*2 personally appeared me, For: The City of Santa Ana who proved to me on 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 entity upon which the person(s) acted, executed the instrument. By: Gerardo Mouet Acting City Manager, City of Santa Ana By: Maria D. Hulzar Clerk of the Council 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. Signature (This area for offdel notenal seal) Deed No. 8609 30A-5 EXHIBIT "A„ WATER EASEMENT — PARTIAL QUITCLAIM LEGAL DESCRIPTION IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF 10.00 FOOT WIDE EASEMENT FOR CONSTRUCTION AND MAINTENANCE OF A WATERLINE, DESCRIBED IN THE GRANT DEED TO THE CITY OF SANTA ANA, RECORDED AUGUST 7,1958 AS INSTRUMENT NO. 36254IN BOOK 4375, PAGE 134, OFFICIAL RECORDS OF SAID COUNTY. SAID EASEMENT LIES WITHIN A PORTION OF THE LAND ALLOTTED TO ABELSTEARNS, AS DESCRIBED IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, A CERTIFIED COPY OF WHICH WAS RECORDED SEPTEMBER 12,1868 IN BOOK B, PAGE 410 OF JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT, IN AND TO LOS ANGELES COUNTY AND BEING A PORTION OF THAT CERTAIN PARCEL OF LAND IN SAID CITY OF SANTA ANA, SHOWN AS 16.18 ACRES ON A MAP FILED IN BOOK 36, PAGE 10F RECORDS OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, THE CENTERLINE OF SAID PORTION OF THE EASEMENT IS DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SECTION 1, TOWNSHIP 5 SOUTH, RANGE 10 WEST OF THE SAN BERNARDINO MERIDIAN; THENCE, ALONG THE CENTERLINE OF MAIN STREET, NORTH 0"02'48" WEST, 165.10 FEET; THENCE LEAVING SAID CENTERLINE, SOUTH 89°49'42" WEST, 52.00 FEET TO A POINT ON THE WESTERLY LINE OF MAIN STREET, AS DESCRIBED IN THE DEED TO THE CITY OF SANTA ANA RECORDED MARCH 18, 1974 AS INSTRUMENT NO.13886, IN BOOK 11096, PAGE 1681 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH 89°49'42" WEST, 550.50 FEET TO THE WESTERLY LINE OF THE PROPERTY DESCRIBED IN THE GRANT DEED TO 2700 N MAIN LLC, A CALIFORNIA LIMITED LIABILITY, RECORDED JANUARY 15, 2016 AS INSTRUMENT NO. 201600002120201, OFFICIAL RECORDS OF SAID COUNTY. THE SIDELINES OF SAID STRIP SHALL BE EXTENDED OR SHORTENED TO ORIGINATE IN SAID WESTERLY LINE OF MAIN STREET AND TERMINATE IN SAID WESTERLY LINE OF THE PROPERTY DESCRIBED IN THE GRANT DEED TO 2700 N MAIN LLC, A CALIFORNIA LIMITED LIABILITY. AS SHOWN ON EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. GREGORYT. S LARBAUM, P.L.S, 6704 FUSCOE ENGINEERING DATE PAGE 10F 1 M.\Mapping\1542\001\Legals\Water Esmt Quitolalm\1542-001 WATER-QC.docx 30A-6 /� NL'Y LINE OF INST. NO. 2016000021201 O.R. L-------- --L-------------------52I o S89'49'42"W 602.50' � -�„ L% � I•a,ar 55r�-z-xaasars. - -- - - - - - - U. YI — S'LY LINE OF R.S.B. 35/1, i ®o 0 E'LY LINE OF MAIN STREET ELW PER 11096/1681 O.R. H � PORTION OF WATERLINE EASEMENT RECORDED 8/07/58 w 11) IN BK. 4375, PAGE 134 O.R., P.O.B. p W'LY LINE OF INST. TO BE QUITCLAIMED. NE. COR. o NO. 2016000021201 O.R. SEC. 1, T. 5 S.. 52' z R. 10 A S.B.M. -----L 4, S., S.B.M.----- ---- — — — — — — — — mgy T. 5, S., S.BB.M. I � --------- oil _ MAINPLACE DRIVE (OWEN (OWEN& DRIVE) 100' 0' 50' 100' SCALE: 1" = 100` „"ltll EXHIBIT B DATE' 10/28/2010 �r SKETCH TO ACCOMPANY CCOMPANY LEGAL DESCRIPTION SCALE: 1' a too' F Ile.. PARTIAL QUITCLAIM OF WATER EASEMENT JN: 9542-001 16195 Yon Korman, smla tan, �Mna, cnum.mo 95406 CITY OF SANTA ANA, CALIFORNIA W 949A74.1960 a fox 947.474.5315 a �.,,fu ooe.co'n SHEET 1 OF 1 M:\MAPPING\1542\001\LEGALS\WATER ESMT QUITCLAIM\1542-001WAT—QC.DWG (01-18-17) 30A-7 30A-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: TRANSFER OF PUBLIC UTILITY EASEMENT (2800 NORTH MAIN STREET) (STRATEGIC PLAN NO. 3,2) CITY IkAANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: Vv"Ja�Tfvicp ® As Recommended ® As Amended 71 Ordinance on 1®i Reading © Ordinance on 2Id Reading ® Implementing Resolution 0 Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a quitclaim deed relinquishing the City's interest in a water line easement at 2800 North Main Street to MainPlace Shoppingtown LLC, a Delaware limited liability company. DISCUSSION In 2014, the applicant, Westfield Mainplace Mall, proposed the construction of an outdoor pedestrian escalator at the existing mall. The escalator provides better pedestrian accessibility for its patrons by connecting two parking area levels. The location of the escalator partially encroaches onto an existing 32-foot-wide easement which contains a 12" water main owned by the City of Santa Ana. The water main has been realigned resulting in excess easement. It is recommended that the excess easement be quitclaimed to the applicant (Exhibits 1 and 2). STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Objective #2 (create new opportunities for business/job growth development through new General Plan and Zoning Ordinance policies). FISCAL IMPACT There is no fiscal impact associated with this action. A/ F ed kMousavipour Executive Director Public Works Agency Exhibit: 1. Map 2. Quitclaim Deed Economic Development, and encourage private 30B-1 30B-2 MALL STRUCTURE PARKING STRUCTURE 0 1 16' 16' V will I ' I EXISTING EASEMENT 14 TO REMAIN 32' I TO BE QUITCLAIMED SANTA ANA Title• myAgenda late; City council February 21, 2017 PUBIC WKS O Ency EXHIBIT 1 PAGE 2 OF 2 QUITCLAIM OF WATER EASEMENT 2800 NORTH MAIN STREET When recorded, please mail this Instrument 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. EXHIBIT 2 SPACE ABOVE THIS LINE FOR RECORDERS USE Cancel Approved AS TO I Approved By Desedptlon Deecripllon I A.PNumber R1W Map Number Project Texas Form BY Atly Director written BY Checked-O. K, IJ.E.A. Number A.C, 1 002-221-52 NW 162 QUITCLAIM DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF SANTA ANA, a Charter City and Municipal Corporation of the State of California Does Hereby Remise, Release, and Forever Quitclaim to: MainPlace Shoppingtown LLC, a Delaware limited liability company ALL RIGHTS, TITLE AND INTEREST in and to the real property In the City of Santa Ana, County of Orange, State of California, described in Exhibit "A" attached hereto and by this reference made a part hereof, and as shown on Exhibit "B", attached hereto and incorporated herein. 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. Dated: STATE OF CALIFORNIA COUNTY OF On personally appeared For: The City of Santa Ana )SS. } By: Gerardo Motet Acting City Manager, City of Santa Ana before me, who proved to me on the basis of satisfactory evidence to be the person(s) whose names) 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 entity upon which the person(s) acted, executed the instrument. By: Marla D. Hulzar Clerk of the Council 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. Signatu (This area for official notarial seal) Deed No. 8610 U m `a • c 5 g EXHIBIT "A" QUITCLAIM OF PORTION OF PUBLIC UTILITY EASEMENT LEGAL DESCRIPTION THAT PORTION OF THAT CERTAIN EASEMENT FOR PUBLIC UTILITY PURPOSES, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, GRANTED TO THE CITY OF SANTA ANA PER GRANT OF EASEMENT RECORDED DECEMBER 09, 1987, AS INSTRUMENT NO. 87-681878 OF OFFICIAL RECORDS OF SAID COUNTY, LOCATED IN PARCEL 8 OF PARCEL MAP NO. 99-152, AS SHOWN ON A MAP THEREOF FILED IN BOOK 328, PAGES 36 THROUGH 42, INCLUSIVE, OF PARCEL MAPS, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THAT CERTAIN COURSE THE BOUNDARY OF SAID EASEMENT DESCRIBED IN SAID GRANT OF EASEMENT AS BEING NORTH 74°32'40" WEST, 43.33 FEET, SAID POINT BEING DISTANT THEREON SOUTH 74032'40" EAST, 2.61 FEET FROM THE NORTHWESTERLY TERMINUS THEREOF; THENCE ALONG SAID CERTAIN COURSE SOUTH 74032'40" EAST, 40.72 FEET TO AN ANGLE POINT IN SAID BOUNDARY; THENCE CONTINUING ALONG SAID BOUNDARY SOUTH 00003'47" EAST, 19.53 FEET; THENCE NORTH 52016'20" WEST, 49.65 FEET TO THE POINT OF BEGINNING. EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. THIS DESCRIPTION WAS PREPARED jA ALD E• � BY ME OR UNDER MY DIRECTION: ANF9CIRN JR. PLS 71$9 `T BALD E, A I -I RN JR., L.S. 7159 OF EXHIBIT gpBlp SHEET 1 OF 1 SHEET MAP TO ACCOMPANY LEGAL DESCRIPTION IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA QUITCLAIM OF PORTION OF PUBLIC UTILITY EASEMENT PARCEL a PARCEL MAP NO. 99-152 2,61, PAL o 320/36-42 cC1 I \\ Lv '074•32,40,,W P.O.B. N \ \ \� '00, SqN �° FSr FOR A eC, r2 Nq ( Fq vy&Ll° Ur \ ear87$s r s� Asr F F c yy 1 "4s� ' or % MENr GARDEN GROVE FREEWAY PMAINPLACF VICINITY MAP NO SCALE PREPARED BY: R.A. SMITH NATIONAL 8881 RESEARCH DRIVE IRVINE, CA 92618 (949) 872-2378 I1 w N Z SCALE: 11 "=20' NOTE: (...) INDICATES RECORD DATA PER INST. NO. 87-681878, REC, 12-09-1987, O.R. PREPARED UNDER THE SUPERVISION �1 JEf�pL E-ANHORN JR., L.. 7159 JERALD E, ANHORN JR, PLS 7159 of REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: ORDINANCE AMENDING SANTA ANA MUNICIPAL CODE SECTION 5-72.1 DEFINTIONS REGARDING POTENTIALLY DANGEROUS AND VICIOUS DOG {STRATEGIC PLAN NO. 7, 5E} CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended 0 As Amended El Ordinance on tat Reading 0 Ordinance on 2"a Reading © Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve first reading of an ordinance amending Santa Ana Municipal Code section 5-72.1 definitions regarding potentially dangerous and vicious dog. DISCUSSION On July 25, 2016, the California Legislature amended Section 31603 of the Food and Agriculture Code to remove dogs seized pursuant to specified animal cruelty laws from the definition of a vicious dog. The amendment became effective January 1, 2017. The Santa Ana Municipal Code provision defining a vicious dog includes the same provisions that were in state law for dogs seized pursuant to animal cruelty laws. As of January 1, 2017, such provisions are no longer consistent with state law. Staff recommends amending Santa Ana Municipal Code section 5-72.1 to remove from the definition of a "vicious dog" reference to any dog seized as a "fighting animal" under Section 599aa of the Penal Code and upon the sustaining of a conviction of the owner or custodian of a fighting animal as set forth in Subdivision (a) of Section 597.5 of the Penal Code. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's effort to meet Goal # 7 - Team Santa Ana, Objective 5 (Create a culture of innovation and efficiency within the organization) Strategy E (Identify best practices and opportunities for process improvement and automation across City departments in order to provide effective and efficient delivery of City services to the community). 50A-1 Ordinance Amending Santa Ana Municipal Code Section 5-72.1 February 21, 2017 Page 2 FISCAL IMPACT It is anticipated that there will be no fiscal impact associated with this action. MW Sonia R. Carvalho City Attorney EXHIBIT: 1. Ordinance 50A-2 LAR 2/21/17 ORDINANCE NO, NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING SANTA ANA MUNICIPAL CODE SECTION 5-72.1 DEFINTIONS REGARDING POTENTIALLY DANGEROUS AND VICIOUS DOG 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 July 25, 2016, the California Legislature amended section 31603 of the Food and Agriculture Code to remove dogs seized pursuant to specified animal cruelty laws from the definition of a vicious dog. The amendment became effective January 1, 2017. B. Santa Ana Municipal Code section 5-72.1 includes the same definition of vicious dog that was contained in California Food and Agriculture Code section 31603. As of January 1, 2017, such provisions are no longer consistent with state law. C. The City Council of the City of Santa Ana wants to amend Santa Ana Municipal Code section 5-72.1 to be consistent with state law. Section 2. Chapter 5, Article II, Section 5-72.1 is hereby amended to read as follows (old language is stricken): Sec. 5-72.1-Definitions (a) Potentially dangerous dog means any of the following: (1) Any dog which, when unprovoked, after two (2) separate documented bites within the prior 36-month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury whether the person and the dog are on or off the property of the owner or custodian of the dog. (2) Any dog which, when unprovoked, bites a person causing any injury less severe than a "severe injury." Severe injury means any physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery. (3) Any dog which, when unprovoked, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal, horse, or livestock. (b) Vicious dog means any of the following: (1) (2) Any dog which, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being, whether the person and the dog are on or off the property of the owner or custodian of the dog. (2) (3) Any dog previously determined to be and currently listed as a potentially dangerous dog, which, after its owner or keeper has been notified of this determination, continues the behavior of a .'potentially dangerous dog" as set forth above, or is maintained in violation of the conditions and restrictions placed upon the dog as a "potentially dangerous dog." (c) Provided, no dog may be determined to be a vicious dog if any such bite, threat, injury or damage was sustained by a person who, at the time, was committing a willful trespass upon the premises occupied by the owner or custodian of the dog, or was committing or attempting to commit a crime upon the premises occupied by the owner or custodian of the dog, or was teasing, tormenting, abusing or assaulting the dog or who has, in the past, teased, tormented, abused or assaulted the dog. (d) These definitions do not apply to dogs used in military or police work while they are actually performing in that capacity. Section 3. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The City Council of the City of Santa Ana hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof. Ordinance No. NS-XXX Page 2 of 3 Section 4. The City Clerk shall certify the adoption of this Ordinance and shall cause the same to be posted as required by law. ADOPTED this day of 2017. APPROVED AS TO FORM: By, � A��i Laura A. Rossini Senior Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: Councilmembers Councilmembers Councilmembers Councilmembers Miguel A. Pulido Mayor 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 3 of 3 41A REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: RESOLUTION AUTHORIZING SUBMISSION OF AN APPLICATION TO CALIFORNIA PUBLIC UTILITIES COMMISSION FOR ACQUISITION OF THE STREETLIGHT SYSTEM FROM SOUTHERN CALIFORNIA EDISON (NON -GENERAL FUND) (STRATEGIC PLAN NO. 6, 1C) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 181 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution authorizing the Executive Director of the Public Works Agency to pursue California Public Utilities Commission review and approval of an agreement for the acquisition of approximately 7,817 streetlights by the City of Santa Ana from Southern California Edison. DISCUSSION Southern California Edison (SCE) altered its long-standing corporate policy with respect to the streetlight system by making SCE -owned streetlights available for purchase by local governments. SCE currently owns approximately 11,373 high pressure sodium streetlights throughout the City of Santa Ana, of which approximately 7,817 have been made available for purchase. Council approval of the recommended Resolution (Exhibit 1) is needed so that the California Public Utilities Commission (CPUC) will begin review of the Purchase and Sale and the License Agreements. Upon CPUC review and approval which is anticipated to take four to six months, the City Council would then have the option to pursue the street light system purchase. After submission of the agreements to the CPUC, staff will publish a Request for Proposals to engage a financial advisor to examine available financial programs to fund the purchase and retrofitting of the acquired streetlight system. Upon approval of the agreements by the CPUC, the financial model and options would be presented to Council for further consideration and direction. The City would not be committed to the purchase until the terms of the agreements are finalized, the CPUC approves the transaction, and the City Council approves the final Purchase and Sale Agreement and its financing package. The energy and maintenance costs are anticipated to be substantially lower by approximately $900,000 per year. These savings will be leveraged to finance the acquisition. 55A-1 Resolution Authorizing City to pursue CPUC Approval to Purchase Streetlight System from SCE February 21, 2017 Page 2 Ownership of the 7,817 SCE streetlights by the City will result in many benefits: • Convert to energy efficient Light -Emitting Diode (LED) fixtures • Improve the environment • Provide faster street lighting service calls • Improve lighting levels and safety • Reduce energy cost to the City • Provide higher street lighting system reliability • Reduce maintenance costs from significantly improved LED performance • Leverage the energy savings to purchase the street lights On August 4, 2015, the City Council awarded an agreement with Tanko Lighting to conduct a feasibility study and provide acquisition support should the city decide to purchase the Citywide streetlight system from SCE. A new LED street light with pole would cost nearly $5,000 each to install. In contrast, the Tanko report, following CPUC guidelines, established the purchase price of each street light to be just under $500 each. The Tanko study concluded that the purchase price to acquire all 7,817 streetlights is $3.7 million. However, upgrading the streetlight system will be necessary so that the City achieves the previously mentioned benefits. The system will need to be outfitted with LED lamps, new controllers, repair/replace deficient streetlight poles, and design over/under lit areas at a cost of $8.6 million. Therefore, the total one- time cost to purchase and upgrade the streetlight system is approximately $12.3 million (Exhibit 2) and will be financed with the use of maintenance / energy cost savings. Established CPUC procedures must be followed in order to present the option to acquire the SCE -owned streetlights. Pursuant to those requirements, a detailed appraisal of the existing SCE -owned streetlight system was conducted (Exhibit 3). The value of the street lighting system was set by using the Replacement -Cost -New -Less -Depreciation method acceptable by the CPUC. The City and SCE have drafted a Purchase and Sale Agreement (Exhibit 4) which will be sent to the CPUC for review and approval. A separate License Agreement (Exhibit 5) has also been drafted that addresses existing and future wireless communications devices attached to streetlight poles. These devices are used by SCE to collect and relay data, and to communicate with SCE electrical power distribution systems. The License Agreement identifies the terms and conditions for the maintenance, removal, repair, or replacement of the attached devices. 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 C (invest resources and technology to extend the service life of existing infrastructure to protect the City's investment and support a high quality of life standard). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. 55A-2 Resolution Authorizing City to pursue CPUC Approval to Purchase Streetlight System from SCE February 21, 2017 Page 3 FISCAL IMPACT There is no fiscal impact associated with this action. However, future actions will require City Council approval on fiscal impact. Fre Mousavipour + Fr ncisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency Y'Y s R. Carvalho Attorney FM/EWG/TC Exhibits: 1. Resolution 2. Cost to Purchase the Streetlight System 3. Appraisal 4. Draft Purchase and Sale Agreement 5. Draft Light Pole License Agreement for Wireless Attachment 55A-3 55A-4 Imf 2/15/17 RESOLUTION NO. 2017-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE EXECUTIVE DIRECTOR OF THE PUBLIC WORKS AGENCY TO PURSUE CALIFORNIA PUBLIC UTILITIES COMMISSION APPROVAL TO PURCHASE APPROXIMATELY 7,800 STREETLIGHTS FROM SOUTHERN CALIFORNIA EDISON; SUBJECT TO FURTHER APPROVAL BY THE CITY COUNCIL OF A PURCHASE AND SALE AGREEMENT BETWEEN THE PARTIES WHEREAS, Southern California Edison (SCE) currently owns Eleven Thousand, Three Hundred Seventy Three (11,373) LS-1 electric streetlight facilities located in the City of Santa Ana; and WHEREAS, the City has expressed a desire to purchase approximately Seven Thousand, Eight Hundred Seventeen (7,817) of these streetlights from SCE; and WHEREAS, SCE is willing to sell the streetlight system to the City, on the terms and conditions set forth in a proposed Purchase and Sale Agreement that has been prepared by the City and will be subject to separate approval by the City Council; and WHEREAS, on August 4, 2015, the City Council engaged Tanko Lighting to conduct a feasibility study that verified the value of the streetlights to be $3.7 million, and which estimates the cost to upgrade the streetlights to LED lamps, to install controllers, to repair or replace deficient streetlight poles, and to design the streetlight system to adjust over/under lit areas at $8.6 million, resulting in a total one-time cost to purchase and upgrade the streetlight system of approximately $12.3 million; and WHEREAS, by taking ownership of the 7,817 streetlights, the City will have the opportunity to lower costs, improve operations, and enhance services provided by the streetlights to both the residents and visitors of Santa Ana, resulting in modernized streetlights utilizing energy efficient LED fixtures which will significantly reduce energy and maintenance costs; and WHEREAS, financing the acquisition of the streetlights would incur an annual maintenance cost of approximately $100,000, but with the upgrade to LED lamps and its annual energy consumption savings of approximately $1 million, results in an annual net savings of $900,000; and WHEREAS, this purchase is subject to approval by the California Public Utilities Commission and must follow procedures established by the GPUC, including a detailed appraisal of the existing SCE -awned streetlight system based on a value set by the Replacement -Cost -New -Less -Depreciation method; and Exhibit 9 Resolution No, 2017-XXX Page 1 of 3 55A-5 jmf 2/15/17 WHEREAS, with approval of this Resolution, the proposed Purchase and Sale Agreement will be forwarded to the CPUC for review as part of its approval process; and WHEREAS, following the purchase of the streetlights bythe City, the parties intend to enter into a separate agreement granting a no -fee license to Southern California Edison to attach certain wireless communication equipment owned and operated by SCE to City - owned streetlights. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana as follows; Section 1. City staff is authorized to seek approval of the transaction by the CPUC to proceed with the purchase of approximately 7,800 streetlights from Southern California Edison; subect to future City Council approval of a Purchase and Sale Agreement between the parties. Section 2. City staff is authorized to forward the proposed Purchase and Sale Agreement to the CPUC for review as part of the CPUC's approval process. Section 3. City staff is authorized to issue a Request for Proposals to engage a financial advisor to examine available financial programs to fund the purchase and retrofitting of the acquired streetlight system. Section 4. Upon approval by the CPUC, the financial model and options will be presented to the City Council for further consideration and direction. Section 9. The City will not be committed to the purchase until the terms of the agreement are finalized, the CPUC approves the transaction, and the City Council approves the financial model and Purchase and Sale Agreement. Section 6. 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 , 2017. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: _ John M. Funk Assistant City Attorney Miguel A. Pulido Mayor Resolution No. 2017-XXX Page 2 of 3 y Jmf 2/15/17 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, 2017- 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 Resolutlon No. 2017-XXX Page 3 of 3 55A-7 y • Exhibit 2 COST TO PURCHASE AND UPGRADE THE STREETLIGHT SYSTEM Purchase Required System Upgrades LED Conversion Lighting Controllers Repair/Replace Replacement of Deficient Poles Total Cost $2.5 million $1.6 million $4.5 million $8.6 million $3.7 million $8.6 million $12.3 million 55A-9 55A-10 EXHIBIT 3 APPRAISAL September 29, 2015 Overview of the Tbtal LS'-1 Streetlight System Type Qty Type Overhead Underground Non -Wood 7,388 65% 3,343 4,045 Wood _ 3,985 35% 3,973 12 11,373 100% 7,316 4,057 64% 36% 1950-1959 2,244 1960-1969 2,700 1970-1979 2,571 1980.1989 1,660 1990-1999 873 2000-2009 1,075 2010-present 250 Valuation of'the Sellable L�'=+1 SYFee h'g, t y�tp�r1 "I Qty RCN6D Marbelite (Concrete) 5,142 $1,949,955 Steel 2,204 $468,488 " Wood 471 $451,065 Total: 7,817 $2,869,508 Ad Hoc Replacements $507,598 Additional Fixtures / B Items $67,507 Subtotal $3,444,612 Transition Cost $234,510 Valuation Price $3,679,122 *Note: 12 %of Wood Poles are sellable (streetlights attached to distribution poles or shared poles are excluded) Ad Hoc Replacements represent poles replaced without developer's contribution B Items include other asset components relevant to the sale (Le, riser poles, insulators, down guy, etc.) Tax Neutral Adjustment is needed to recover any tax implication Transition Cast is the severance cost to transfer ownership of the asset 55A-11 55A-12 EXHIBIT 4 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement') is made and entered into as of 2016 ("Effective Date"), by and between SOUTHERN CALIFORNIA EDISON, a California corporation ("SCE"), and the City of Santa Ana, a Municipal Corporation and Charter City (`Buyer"). SCE and Buyer are referred to herein individually as a "Party," and together as "Parties". RECITALS A. SCE currently owns Eleven Thousand, Three Hundred Seventy Three (11,373) LS-1 electric streetlight facilities located in the City of Santa Ana, of which, Seven Thousand, Eight Hundred Seventeen (7,817) are to be purchased by Buyer. B. Buyer has expressed a desire to purchase the Facilities (defined below) from SCE, and SCE is willing to sell the Facilities to Buyer, on the terms and conditions set forth in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the respective covenants and agreements contained in this Agreement, SCE and Buyer each agree as follows: 1. DEFINITIONS. The following terms shall have the meanings ascribed to them below for purposes of this Agreement. "Agreement" has the meaning given in the first paragraph "Applicable Requirements" means all laws, statutes, ordinances, rules, regulations, requirements or orders of any Governmental Authority now in force or that may later be in force, and the terms and conditions of any permit, certificate, license or other requirement. "Bill of Sale" means a document setting forth the Purchase Price and Transition Costs as well as any Taxes for which Buyer is responsible with respect to the Facilities specified to be transferred to Buyer (including Reconfigured Facilities), which document shall be substantially in the form of Exhibit B attached hereto. "Business Day" means a day other than Saturday, Sunday or a day on which (i) banks are legally closed for business in the State of California; or (ii) SCE is closed for business. "Buyer" has the meaning given in the preamble paragraph. "CEQA" has the meaning given in Section 5.2. "Claims" has the meaning given in Section 7.1. Page 1 of 24 55A-13 "Closing Date" means the day on which the closing of the purchase and sale of the Facilities shall occur. "Commencement Date" has the meaning in Section 6.1. "CPUC" means the California Public Utilities Commission, or its regulatory successor, as applicable. "CPUC Approval" means a final, unconditional and unappealable decision of the CPUC under Section 851 of the Public Utilities Code (including exhaustion of all administrative and judicial remedies or the running of time periods and statutes of limitation for rehearing and judicial review without reh( sought) approving this Agreement and the transactions i and conditions acceptable to SCE and Buyer, in theirs approval of SCE's proposed accounting and rate ma accordance with CPUC's decisions. "CPUC Approval Date" means the date on "Effective Date" has the meaning given in the "Environmental Requirements" % m statutes, regulations or ordinances no to the protection of human health or hygiene or environmental conditions, o or contamination of the air, soil, surface and local laws, requirements and r permitting, investigating and remed threatened releases of such substance or or ch the CPUC judicial review being ated hereby on terms discretion, including tment of the sale in le paragraph. occurs. w eans any applicable federal, state and local in force or that may later be in force relating safety, or regulating or relating to industrial of the environment, or pollution water or ground water, including federal, state eguletions pertaining to reporting, licensing, iating emissions, discharges, releases or s into air, surface water or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of such substances. Environmental Requirements include without limitation: the ComprehensiveEnvironmental Response, Compensation, and Liability Act (42 U.S.C. 9601 et seg.); the Hazardous Materials Transportation Act (49 U.S.C. 5101 et sue.); and the Resource Conservation and Recovery Act (42 U.S.C. 6901et - "Excluded Taxes" means (a) taxes (other than any sales, use, gross receipts, or any taxes in the nature of sales, use or gross receipts taxes) imposed on SCE that are capital gains taxes, minimum or alternative minimum taxes, accumulated earnings taxes, franchise taxes or taxes on or measured by gross or net income, capital or net worth of SCE; and (b) personal property taxes to the extent the payment is addressed in Section 3.4(b), and is not required to be reimbursed to SCE by Buyer. "Facilities" has the meaning given in Section 2.2 and further described in Exhibit A. "Governmental Authority" means any federal, state, local or other governmental, regulatory or administrative agency, commission, department, board, subdivision, Page 2 of 24 55A-14 court, tribunal, or other governmental arbitrator, arbitral body or other authority, but excluding Buyer. "Hazardous Substances" means any hazardous or toxic material or waste, which is or becomes regulated by Environmental Requirement. Without limiting the generality of the foregoing, Hazardous Substances includes any material or substance: (a) now or hereafter defined as a "hazardous substance, " "hazardous waste," "hazardous material," " extremely hazardous waste," " restricted hazardous waste" or "toxic substance" or words of similar import under any applicable Environmental Requirements; or (b) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous, and is now or hereafter regulated as Hazardous Substance by the United States, the State of California, any local governmental authority or any political subdivision thereof, or which cause or are listed by the State of California as being known to the State of California to cause, cancer or reproductive toxicity; or (c) the presence of which poses or threatens to pose a hazard to the health or safety of persons or the environment; or (d) which contains gasoline, diesel fuel or other petroleum hydrocarbons; or (e) which contains lead - based paint or other lead contamination, polychlorinated biphenyls ("PCBs"), or asbestos or asbestos -containing materials or urea formaldehyde foam insulation; or (f) which contains radon gas; or (g) fuel or chemical storage tanks, energized electrical conductors or equipment, or natural gas transmission or distribution pipelines; and (h) other potentially hazardous substances, materials, products or conditions. "Inventory Inspection Activities" means the activities referenced in Section 6.2 and set forth in Exhibit C to be performed by Buyer and SCE during the Inventory Inspection Period. "Inventory Inspection Period" has the meaning set forth in Section 6.2(a). "Land" means the real property on which the Facilities are located, together with any other real property that is encumbered by Land Rights. "Land Rights" means the easements, leases, permits, franchise agreements or other agreements that grant SCE the right to locate the Facilities on the Land and/or permit access to the Facilities by SCE. "Local Service Planning Office" means SCE's local service planning office located at 1325 S. Grand Ave, Santa Ana CA 92705. "Potential Environmental Hazards" means electric fields, magnetic fields, electromagnetic fields, electromagnetic radiation, power frequency fields, and extremely low frequency fields, however designated, and whether emitted by electric transmission lines, other distribution equipment or otherwise. "Purchase Price" has the meaning given in Section 3.1. Page 3 of 24 55A-15 "Reconfigured Facilities" means any additional facilities the Parties identify during the Inventory Inspection Period which serve purposes in addition to street lighting, which the Parties agree that SCE will reconfigure to remove such other (non -street light) uses, and which will be purchased by Buyer from SCE. Buyer shall coordinate all activities relating to Reconfigured Facilities with SCE's Local Service Planning Office. "SCE Parties" means SCE, its affiliates, and each of their respective past, present and future officers, directors, partners, employees, agents, representatives, shareholders, attorneys, affiliates, parent and subsidiary corporations, divisions, insurance carriers, heirs, legal representatives, beneficiaries, executors, administrators, predecessors, transferees, successors and assigns. "Transition Activities" means the activities referenced in Section,6.2 and set forth in Exhibit C to be performed by SCE and Buyer (after the Inventory Inspection Period expires) with respect to the Facilities to be transferred from SCE to Buyer. "Transition Costs" has the meaning in Section 3.3. "Tax Claim" has the meaning given in Section 3.4(e). "Taxes" mean all federal, state, local orforeign income, ad valorem, gross receipts, license, payroll, employment, excise, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property including assessments, special assessments, special district assessments, escape assessments, benefit assessments and maintenance assessments, fees or other charges or surcharges of any nature based on the use or ownership of real property), personal property, sales, use, documentary transfer, registration, value added, alternative and add -on minimum, estimated taxes,, and all other taxes of any kind whatsoever, including all interest, penalties, fines and additions thereto, whether disputed or not, including all items for which liability` arises as a transferee or successor -in -interest. PURCHASE AND SALES OF FACILITIES. 2.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, SCE agrees to sell, convey, assign, transfer and deliver to Buyer, and Buyer agrees to purchase and acquire from SCE, all of SCE's right, title and interest in the Facilities. 2.2 Description of Facilities. The "Facilities" consist of Seven Thousand, Eight Hundred Seventeen (7,817) electric streetlight facilities owned by SCE and located within the Buyer's service territory. A detailed description and listing of the Facilities to be purchased and sold is provided Exhibit A. The Parties believe that Exhibit A contains a reasonably accurate inventory and map of the LS-1 streetlight facilities owned by SCE within the Buyer's service territory that are considered for sale. Page 4 of 24 55A-16 PURCHASE PRICE AND OTHER COSTS. 3.1 Purchase Price. Subject to adjustment as provided in this Section 3.1, the total purchase price for all Facilities described in Exhibit A ("Purchase Price") is Three Million, Six Hundred Sixty Nine Thousand, Four Hundred Eighty Seven Dollars ($3,669,487). (a) Prior to the Closing Date, the Parties shall mutually agree on the Purchase Price and any additional costs for any Reconfigured Facilities transferred to Buyer in accordance with Section 6.2. (b) Prior to the Closing Date, if the actual number of Facilities does not equal [insert # of Facilities the first Recital of the Agreement says are to be transferred] then, the Parties will amend the Bill of Sale to increase or decrease the Purchase Price, as appropriate, using the dollar amount of SCE's average price for each type of streetlight facility in the Buyer's municipality (concrete poles will be valued at SCE's average price for concrete poles, steel poles will be valued at SCE's average price for steel poles, wood poles will be valued at SCE's average price for wood poles, and fiberglass poles will be valued at SCE's average price for fiberglass poles). 3.2 Intentionally Omitted. 3.3 Transition Costs. In addition to the Purchase Price, Buyer shall pay to SCE thirty dollars ($30.00) for every pole to be transferred listed in the final bill of sale, which shall represent SCE's good faith estimate of the cost of SCE's Transition Activities with respect to the Facilities ("Transition Costs"). 3.4 Taxes. (a) Except for any Excluded Taxes for which Buyer will have no liability, Buyer shall pay all Taxes arising in connection with the sale and transfer of the Facilities, this Agreement or the transactions contemplated herein, or the receipt of the Purchase Price or other amounts hereunder, which Taxes are levied or imposed on or withrespect to SCE, Buyer or all or any part of the Facilities or any use thereof on or after the Closing Date. (b) State and local personal property Taxes relating to the Facilities for the tax year (ending June 30) will be prorated between Buyer and SCE on the following basis: SCE is to be responsible for all such Taxes for the period up to the Closing Date for such Facilities; and Buyer is responsible for all such Taxes for the period on and after the Closing Date. All Taxes assessed on an annual basis will be prorated on the assumption that an equal amount of Taxes applies to each day of the year, regardless of how many payments are billed or made, except that Buyer will bear all supplemental or other state and local personal property Taxes that arise out of change in ownership of the Facilities. In addition, Buyer acknowledges Page 5 of 24 55A-17 that the Facilities are assessed by the California State Board of Equalization as of January 1 of each year, and, if the Closing Date occurs between January 1 and June 30, SCE must pay personal property taxes arising out of the ownership of the Facilities for the subsequent fiscal year. If the Closing Date occurs between January 1 and June 30, Buyer will deposit with SCE the full amount to pay personal property taxes for the tax year beginning on July 1, in addition to the prorated amount of personal property taxes for the current tax year (ending June 30), and SCE will pay the personal property taxes for these tax years before they become delinquent; provided however, SCE may pay such taxes in installments as permitted by law. If the personal property tax amounts owing for the tax year beginning on July 1 are not available as of the Closing Date; then the amount due from Buyer to SCE for such tax year will be estimatedon the basis of the prior year's personal property taxes and such amount will be subject to adjustment after the Closing Date. If the Closing Date occurs between July 1 and December 31, Buyer will deposit with SCE the prorated amount of personal property taxes for the tax year in which the Closing Date occurs and,SCE will pay the personal property taxes for such tax year before they become' delinquent; provided however, SCE may pay such taxes in installments as permitted by law. (c) SCE will be entitled to any refunds or credits of Taxes relating to the Facilities that are allocable to the period prior to the Closing Date. Buyer will promptly notify and forward to SCE the amounts of any such refunds or credits to SCE within five (5) Business Days after receipt: thereof, Buyer will be entitled to any refund or credit of Taxes relating to the Facilities that are allocable to the period on and after the Closing Date. SCE agrees to reasonably cooperate with Buyer's efforts to obtain such refund or credit. (d) After the Closing Date, Buyerwillnotify SCE in writing, within five (5) Business Days after Buyer's receipt of any correspondence, notice or other communication from a taxing authority or any representative thereof, of any pending or threatened tax audit, or any pending or threatened judicial or administrative proceeding that involves Taxes relating to the Facilitates for the period prior to the Closing Date, and furnish SCE with copies of all correspondence received from any taxing authority in connection with any audit or information request with respect to any such Taxes relating to the Facilities for the period prior to the Closing Date. (e) Notwithstanding any provision of this Agreement to the contrary, with respect to any claim for refund, audit, examination, notice of deficiency or assessment or any judicial or administrative proceeding that involves Taxes relating to the Facilities for the period either entirely prior to the Closing Date or both prior to and after the Closing Date (collectively, "Tax Claim"), the Parties will reasonably cooperate with each other in contesting any Tax Claim, including making available original books, records, documents and information for inspection, copying and, if necessary, introduction as evidence to any such Tax Claim contest and making employees available on a mutually convenient basis to Page 6 of 24 55A-18 provide additional information or explanation of any material provided hereunder with respect to such Tax Claim or to testify at proceedings relating to such Tax Claim. SCE will control all proceedings taken in connection with any Tax Claim that pertains entirely to the period prior to the Closing Date, and SCE and Buyer will jointly control all proceedings taken in connection with any Tax Claim pertaining to the period both prior to and after the Closing Date. Buyer has no right to settle or otherwise compromise any Tax Claim which pertains entirely to the period prior to the Closing Date; and neither Party has the right to settle or otherwise compromise any Tax Claim which pertains to the periods both prior to and after the Closing Date without the other Party's prior written consent. (f) The obligations of the Parties pursuant to this Section 3.4 shall survive the termination of this Agreement. 4. CONDITIONS PRECEDENT 4.1 Conditions to Buyer's Obligations. Buyer's obligation under this Agreement to purchase the Facilities is subject to the fulfiliment orwaiver of each of the following conditions precedent: (a) SCE shall have performed or complied in all material respects with all covenants, agreements and conditions contained in this Agreement to be performed or complied with by SCE at or prior to the Commencement Date and the Closing Date. (b) No suit, action or other proceeding shall be pending before any court or Governmental Authority which seeks to restrain or prohibit any of the transactions contemplated by this Agreement or to obtain material damages or other material relief in connection with this Agreement or the transactions contemplated hereby. 4.2 Conditions to BCE's Obligations SCE's obligation under this Agreement to sell the Facilities to Buyer is subject to the fulfillment or waiver of each of the following conditions precedent: (a) Buyer shall have performed or complied in all material respects with all covenants, agreements and conditions contained in this Agreement to be performed by Buyer at or prior to the Commencement Date and the Closing Date. (b) No suit, action or other proceeding shall be pending before any court or Governmental Authority which seeks to restrain or prohibit any of the transactions contemplated by this Agreement or to obtain material damages or other material relief in connection with this Agreement or the transactions contemplated hereby. 4.3 CPUC Approval. The obligation of each Party to consummate the purchase and the sale of the Facilities is conditioned upon obtaining CPUC Approval. SCE agrees to make reasonable efforts to draft and file an application seeking CPUC Page 7 of 24 55A-19 approval within ninety (90) days following the Effective Date of this Agreement. Buyer agrees to cooperate with SCE's efforts to obtain CPUC Approval, including by promptly reviewing and commenting on the application for CPUC Approval. Buyer acknowledges and agrees that SCE makes no representation or warranty with respect to the likelihood of obtaining CPUC Approval, and Buyer hereby waives all Claims against SCE that may arise as a result of the need for CPUC Approval or SCE's failure to obtain CPUC Approval. The application seeking CPUC Approval will request such approval within six months of the date the application is filed. SCE makes no representations as to when or in what manner the CPUC will act on the application. 4.4 Satisfaction or Waiver of Conditions Precedent. Buyer may waive in writing any of the conditions precedent set forth in Section 4.1, and SCE may waive in writing any of the conditions precedent set forth in Section 4.2. Neither Party shall have the right to waive the condition precedent set forth in Section 4.3. Subject to the foregoing, in the event that any of the conditions precedent set forth in this Section 4.1 or Section 4.2 have not been satisfied or waived on or before the Commencement Date or the Closing Date (as the same may be extended), then the Party whose obligations are subject to such condition precedent shall have the right to rescind this Agreement ab initio upon written notice to the other Party, and SCE and Buyer shall thereupon return to the other Party all performances received from the other Party (except for the Transition Costs actually paid), ,and each Party shall be released from all other obligations under this Agreement, except those which expressly survive termination. > 5. CONDITION OF FACILITIES AND LAND RIGHTS 5.1 Except for CPUC Approval, Buyer is solely responsible for complying, at Buyer's sole expense; with all Applicable Requirements and obtaining all authorizations, consents, licenses, permitsand approvals of Governmental Authorities and third persons in connection with the consummation of the transactions contemplated by this Agreement and with Buyer's operation of the Facilities, whether as result of the PCB content or otherwise. Without limiting the foregoing, Buyer is responsible for any costs of complying with the California Environmental Quality Act ("CEQA"), if and to the extent applicable to the sale and transfer of the Facilities, and satisfying, at Buyer's sole expense, any and all mitigation measures under CEQA that may apply to Buyer's acquisition or operation of the Facilities. Buyer shall promptly notify SCE of any and all mitigation measures that may affect SCE. If SCE determines in good faith that any such mitigation measures may adversely affect SCE, SCE shall have the right without liability to Buyer to terminate this Agreement upon written notice to Buyer. In the event of such termination, SCE and Buyer shall each be released from all obligations under this Agreement, except those that expressly survive termination. Buyer's obligations under this Section 5_1 shall survive the termination of this Agreement. Page 8 of 24 55A-20 5.2 Disclosure Regarding Hazardous Substances. SCE hereby discloses to Buyer that Potential Environmental Hazards and Hazardous Substances, including PCBs, may be present at, in, on, under, about, contained in, or incorporated in the Facilities. Buyer represents that it is purchasing the Facilities for Buyer's own use, and not for resale (provided that Buyer contemplates that Buyer may transfer title to the Facilities in connection with financing and/or refinancing of the Facilities). If Buyer sells the Facilities, or any part thereof, it shall disclose, in writing, to all potential Buyers, prior to the sale, that Potential Environmental Hazards and Hazardous Substances, including PCBs, may be present at, in, on, under, about, contained in, or incorporated in the Facilities, or portions thereof. Further, in the event the Facilities (or any portion thereof) are sold, conveyed or transferred in any manner to a person other than SCE, Buyer shall incorporate in the agreement effectuating such transfer, language substantially in the same form as this paragraph. Buyer's obligations under this Section 5.2 shall survive the termination of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, SCE approval shall not be required for any conveyance of the Facilities, whether or not such conveyance is made in connection with a financing or refinancing of the Facilities or any part thereof. 5.3 Disclaimers Regarding the Facilities and the Land. BUYER ACKNOWLEDGES THAT IT IS RELYING UPON ITS OWN INDEPENDENT INVESTIGATION IN DECIDING TO PURCHASE THE FACILITIES. BUYER EXPRESSLY DISCLAIMS RELIANCE . ON ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES, EITHER EXPRESS OR IMPLIED, BY SCE, ITS OFFICERS, DIRECTORS, COUNSEL, REPRESENTATIVES OR AGENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE FACILITIES, THE PROSPECTS (FINANCIAL AND OTHERWISE) OF THE FACILITIES, THE QUALITY OF WORKMANSHIP OF THE FACILITIES, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. SCE FURTHER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING POTENTIAL ENVIRONMENTAL HAZARDS, THE PRESENCE OF HAZARDOUS SUBSTANCES, COMPLIANCE OF THE FACILITIES OR THE LAND WHERE THE FACILITIES ARE LOCATED WITH ENVIRONMENTAL REQUIREMENTS, OR LIABILITY OR POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL REQUIREMENTS. NO SCHEDULE OR EXHIBIT TO THIS AGREEMENT, NOR ANY OTHER MATERIAL OR INFORMATION PROVIDED BY OR COMMUNICATIONS MADE BY SCE, WILL CAUSE OR CREATE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCE EXPRESSLY DISCLAIMS: (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY; (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR MATERIALS. Page 9 of 24 55A-21 5.4 "AS IS" SALE. THE FACILITIES ARE BEING TRANSFERRED "AS IS, WHERE IS, AND WITH ALL FAULTS" IN THEIR EXISTING CONDITION, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND BY SCE, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE AGAINST SCE. 5.5 Specific Disclaimer Regarding Land Rights. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SCE IS NOT ASSIGNING OR OTHERWISE TRANSFERRING ITS RIGHT, TITLE AND INTEREST IN AND TO ANY LAND RIGHTS (OR ANY CLAIM, RIGHT OR BENEFIT ARISING UNDER OR RESULTING FROM SUCH LAND RIGHTS) IN CONNECTION WITH ITS SALE OF THE FACILITIES TO BUYER, AND BUYER ASSUMES ANY AND ALL RISKS AND LIABILITIES IN CONNECTION WITH THE ABSENCE OF ADEQUATE OR APPROPRIATE LAND RIGHTS. 5.6 Maintenance of Facilities Prior to Closing. From the Effective Date until the Closing Date, SCE will, at its expense, operate and maintain the Facilities in accordance with SCE's rate "Schedule LS-1 -LIGHTING - STREET AND HIGHWAY - UNMETERED SERVICE COMPANY -OWNED SYSTEM," and consistent with SCE's custom and past practices. 5.7 New Facilities. Until the Commencement Date, SCE may continue to install new streetlights in the City of Santa Ana in accordance with SCE's standard practices and tariffs and CPUC rules and regulations. 6. COMMENCEMENT_ AND POST -COMMENCEMENT ACTIVITIES. 6.1 Commencement Date. The"Commencement Date" shall be the date that is five (5) working days after the CPUC Approval Date. 6.2 Actions on Commencement Date. On or before the Commencement Date the Parties shall commence the following actions for the Facilities to be transferred to Buyer: (a) For a period not to exceed six (6) months following the Commencement Date (the "Inventory Inspection Period"), the Parties will perform their respective Inventory inspection Activities set forth in Exhibit C, including identifying any Reconfigured Facilities. SCE's Local Service Planning office shall provide written notice to Buyer before the expiration of the Inventory Inspection Period identifying any potential Reconfigured Facilities and stating the work necessary to reconfigure such facilities for sale to Buyer and the estimated time and cost to complete the work ("Reconfigured Facilities Notice"). (b) For a period of ten (10) Business Days following Buyer's receipt of the Reconfigured Facilities Notice, Buyer shall have the right to accept or reject the Reconfigured Facilities described in the Reconfigured Facilities Notice, which Page 10 of 24 55A-22 acceptance or rejection shall be evidenced by a written notice delivered to SCE's Local Service Planning Office. (c) At any time during the Inventory Inspection Period, each Party shall perform and complete its respective Transition Activities for all Facilities, excepting only the Reconfigured Facilities identified in the Reconfigured Facilities Notice, which Reconfigured Facilities shall not be included in the Bill of Sale, will not be paid for through Escrow, but will rather be invoiced for separately following the Closing Date. Notwithstanding the foregoing, prior to or during the Inventory Inspection Period, each Party shall perform and complete its respective Transition Activities for any Reconfigured Facilities. (d) Not later than thirty (30) days prior to the expiration of the Inventory Inspection Period, SCE shall deliver to Buyer a revised and final Bill of Sale duly executed by SCE. The Parties agree that delivery of the Bill of Sale shall be effective upon the earlier of (i) delivery to Buyer by hand of an original Bill of Sale or (ii) Buyer's receipt of a facsimile or other electronic transmission of the Bill of Sale. If delivery is made by facsimile or other electronic transmission, SCE shall concurrently send the original Bill of Sale to Buyer by registered or certified mail or overnight courier. (e) At any time prior to delivery of the final Bill of Sale, Buyer may elect at its sole and absolute discretion to remove any of the Facilities (except for Reconfigured Facilities) and deduct on a pro rata basis the value of such Facilities from the Purchase Price. (f) Within ten (10) working days following the delivery of the final Bill of Sale, Buyer shall say to SCE in US Dollars the Purchase Price, Transition Costs, and the Taxes (but not Excluded Taxes) for the Facilities to be transferred to Buyer. (g) Following the Closing Date, SCE's Local Service Planning Office will invoice Buyer separately for any duly accepted Reconfigured Facilities. 6.3 Assumption of Liabilities. Beginning on the Closing Date, Buyer will assume all obligations and liabilities of any kind or nature whatsoever related to, arising from, or associated with ownership or possession of the Facilities transferred to Buyer. 6.4 Post -Inventory Inspection Period Activities. (a) As soon as practicable after the Closing Date, but effective as of the Closing Date, SCE will officially change the charge for electricity furnished to the Facilities transferred to Buyer from the Streetlight Rate Schedule LS-1 to the Streetlight Rate Schedule "LS-2 LIGHTING - STREET AND HIGHWAY CUSTOMER -OWNED INSTALLATION - UNMETERED SERVICE" Multiple Service — Rate B and provide written notice to Buyer of such change ("Notice of Rate Change"). At the next available billing period following the Notice of Page 11 of 24 55A-23 Rate Change, SCE shall credit Buyer an amount equal to the difference between the amount charged to Buyer for electricity under the LS-1 Schedule and the amount that would have been charged to Buyer for the same electricity under the LS-2 Schedule for the period beginning with the Commencement Date and ending on the date the rate change is effective. (b) Prior to the Closing Date, SCE shall provide an updated final map and inventory of the Facilities transferred to Buyer. 6.5 Prohibition on Connecting Non -Conforming Load. Buyer acknowledges and agrees that Buyer's purchase of the Facilities does not entitle Buyer to connect non -conforming load to the Facilities or supporting circuits beyond SCE's initial point of connection. If Buyer wishes to connect such non -conforming load, Buyer agrees to comply with SCE's applicable filed tariffs. 6.6 Closing Date. The Closing Date shall occur no later than the first working day immediately following the completion of the Inventory Inspection Period. The exact Closing Date shall be determined by the mutual consent of the Parties. 7. RELEASE. 7.1 Release. Buyer, for itself, and for any future owners of all or a part of the Facilities, and each of their respective predecessors, successors, assigns, licensees, officers, directors, employees, agents, partners, shareholders, transferees, parent and subsidiary corporations, legal representatives, heirs, beneficiaries, executors and administrators hereby fully and forever releases, discharges and covenants not to sue the SCE Parties of, from or for any and all losses (including diminution in the value of the Land) and all other costs, claims, demands, actions, suits, orders, causes of action, obligations, controversies, debts, expenses, accounts, damages (including "consequential or direct damages), judgments and liabilities of whatever kind or nature (including fines and civil penalties), and by whomsoever asserted, in law, equity or otherwise, whether known or unknown, (each a "Claim" and, collectively, "Claims") arising from or in any way connected with the Facilities, Claims relating to Potential Environmental Hazards, and Claims relating to the presence of PCBs or any other Hazardous Substances in the Facilities, and/or in, on or about the Land. 7.2 Waiver of Civil Code § 1542. With respect to the matters being released in Paragraph 7, and as to those matters only, Buyer does knowingly, after having first obtained the advice of its attorneys, waive all of the provisions of California Civil Code § 1542 ("Section 1542"). Section 1542 reads 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." Page 12 of 24 55A-24 Buyer acknowledges and agrees that: (a) the releases set forth in Paragraph 7 are intended to extend to and extinguish all claims, causes of action, etc. that are encompassed within the terms of the releases, including those that are not presently known to or suspected by Buyer and (b) it may hereafter discover facts in addition to or different from those which it now believes concerning the subject matter of this Agreement, and that notwithstanding any such new or different facts, the releases contained herein will remain effective. Buyer further acknowledges and agrees that the foregoing waiver of Section 1542 is an essential and material term of this Agreement, without which said consideration would not have been given. Buyer has been advised by its legal counsel regarding this release and waiver and understands and acknowledges the significance and consequences of this release and waiver of Section 1542. 8. INDEMNITY. Buyer shall, at its sole cost and expense, indemnify, protect, defend and hold the SCE Parties harmless, to the fullest extent permitted by law, from and against any and all Claims (including the payments of damages, both actual and consequential, the payment of penalties and fines, the payment of the actual fees and expenses of experts, attorneys and others, and the payment of the cost of environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work and other "response costs" under CERCLA or any other Environmental Requirements) arising from or in any way connected with: (a) any activities or failures to act in connection with this Agreement by Buyer, its employees, agents, or contractors; or (b) the ownership, possession, use or operation of the Facilities transferred to Buyer from and after the Closing Date; or (c) Potential Environmental Hazards relating to the Facilities or the presence, disposal, dumping, escape, seepage, leakage, spillage, discharge, emission, pumping, emptying, injecting, leaching, pouring, release or threatened release of PCBs or any other Hazardous Substances in connection with the Facilities, to the extent such Hazardous Substances were present or affecting the Facilities and/or in, on, or about the Land as of the Closing Date; or (d) the failure of the Facilities to comply with any Applicable Requirements following the Closing Date; or (e) Buyer's breach of any of its obligations under this Agreement. In no event shall Buyer be required to indemnify SCE for any claims to the extent related to the gross negligence or willful misconduct of SCE. If any action or proceeding is brought against any one or more SCE Parties for any Claim against which Buyer is obligated to indemnify or provide a defense hereunder, Buyer, upon written notice from SCE, shall defend the SCE Parties. Buyer's obligation to defend includes the obligation to defend claims and participate in administrative proceedings, even if they are false or fraudulent. The indemnity, defense and other obligations of Buyer in this Section 8 shall survive the termination of this Agreement. Any claim for indemnification for any losses connected with any Claims subject to this Section will be reduced by any amount that SCE receives from any insurance policy regarding those losses. 9. MISCELLANEOUS. 9.1 Time of Essence. Time is of the essence of this Agreement and each and every provision hereof. Page 13 of 24 55A-25 9.2 Force Maieure. Except for the payment of money when due, performance by either Party hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to force majeure events beyond the control of such Party, including, without limitation, war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, government imposed moratorium legislation, actions of failures to act by any regulatory authority with jurisdiction over SCE (including the CPUC), freight embargoes, lack of transportation, weather -caused delays, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplier, that are not attributable to the fault of the Party claiming an extension of time. An extension of time for any such force majeure cause shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the Party claiming the existence of the delay first provides the other party with written notice of the occurrence of the delay; within ten (10) days of the commencement of such occurrence of a force majeure event and, thereafter, takes prompt and reasonable action within its control to remedy such force majeure event. 9.3 Further Assurances. Each Party hereto agrees to execute and deliver to the other Party such further documentsor instruments as may be necessary or appropriate in order to carry out the intentions of the Parties as contained in this Agreement. 9.4 Binding Effect; Assignment. This Agreement shall be binding upon, and shall inure to the benefit of, the heirs, successors and assigns of the Parties hereto. Notwithstanding the foregoing, Buyer shall have no right to assign this Agreement or any of its rights or obligations under this Agreement. 9.5 Severability. If any provision of this Agreement shall be unenforceable or invalid, the same shall not affect the remaining provisions of this Agreement and the provisions of this Agreement are intended to be and shall be severable. 9.6 Survival. The covenants, agreements, obligations, indemnities and releases contained in Sections 3.4 5, 6.3, 6.4, 6.5, 7 and 8 of this Agreement shall survive the termination of this Agreement. 9.7 Governing Laws. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California without reference to its conflicts of laws provisions. 9.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 9.9 Notices. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be either personally delivered or Page 14 of 24 55A-26 transmitted by registered or certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier, such as Fed Ex or Airborne Express, addressed to the Parties as follows: If to SCE: Manager of Streetlights Attention: John King Southern California Edison 6042 A Irwindale Ave, Irwindale CA 91702 If to Buyer: City of Santa Ana Attn: Tyrone Chesanek, P.E. Principal Civil Engineer Construction Engineering Public Works Agency 20 Civic Center Plaza Santa Ana, CA 92701 The date of any notice or communication shall be deemed to be the date of receipt if delivered personally, or the date of the receipt or refusal of delivery if transmitted by mail or overnight courier. Any Party may change its address for notice by giving notice to the other Party in accordance with this Section 9.9. 9.10 Limitation on Liability. Buyer expressly agrees that the obligations and liabilities of SCE under this Agreement and any document referenced herein shall not constitute personal obligations of the officers, directors, employees, agents, affiliates, members, representatives, stockholders or other principals or representatives of SCE. SCE expressly agrees that the obligations and liabilities of Buyer under this Agreement and any document referenced herein shall not constitute personal obligations of the officers, directors, employees, agents, affiliates, members, representatives, stockholders or other principals or representatives of Buyer. The limitations contained in this Section 9.10 shall survive the termination of this Agreement. 9.11 Exhibits. The following Exhibits are attached hereto and incorporated by reference into this Agreement. Exhibit A Description of the Facilities Exhibit B Form of Bill of Sale Exhibit C Inventory Inspection Activities Exhibit D SCE Communications Equipment Exhibit E Pole Attachment License Agreement 9.12 Dispute Resolution. In the event any dispute arises concerning the enforcement and/or interpretation of this Agreement, the Parties agree to attempt initially to settle such claims or disputes in good faith between themselves. Said obligation Page 15 of 24 55A-27 to discuss settlement of such claims or disputes shall be initiated by written notice of such claim or dispute. Should the Parties not settle such claims or disputes within thirty (30) days of the date of mailing of such notice or within such additional time period to which the Parties agree in writing (the "Negotiation Period"), the Parties may mutually agree to submit any such claim or dispute to mediation. In such case, the Parties will select an independent mediator within thirty (30) days of the expiration of the Negotiation Period (the "Selection Period"), either by mutual agreement or, in the absence of agreement on a mediator, by requesting during the Selection Period that the American Arbitration Association in Los Angeles, California appoint a mediator. The mediation shall be commenced within thirty (30) days of the selection of a mediator by the Parties or the American Arbitration Association. Except as provided herein or by written agreement of the Parties, the mediation shall be conducted in Los Angeles pursuant to'the rules of the American Arbitration Association. If the Parties are unable to settle the dispute through discussions or in mediation, each Party shall have the right to pursue all of its remedies at law or in equity. The covenants of Buyer and SCE contained in this Section 9.12 shall survive the termination of this Agreement. 9.13 Communications Equipment. Buyer acknowledges that the Facilities have certain SCE -owned and operated radio equipment, used for the collection and relay of data from meters and the collection, relay, and communication with SCE distribution systems, attached to them as identified in Exhibit D ("SCE Communications Equipment'). Concurrently with the Closing Date, Buyer shall grant to SCE a cost-free license to leave in place, operate, maintain, replace and remove any SCE Communications Equipment attached to Facilities purchased by Buyer pursuant to the Pole Attachment License Agreement attached hereto as Exhibit E. 9.15 Interpretation. The language in all parts of this Agreement shall be construed according to its normal and usual meaning and not strictly for or against either SCE or Buyer. The headings of the paragraphs of this Agreement are inserted solely for convenience of reference and are not a part of and are not intended to govern, limit or aid in the construction of any terms or provisions hereof. The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." 9.16 Authority. Each Party represents and warrants that the execution, delivery and performance of this Agreement has been duly authorized by such Party and each person signing this Agreement on its behalf is duly and validly authorized to do so. 9.17 Prior Agreements. This Agreement and the exhibits hereto contain the entire agreement and understating of the Parties relating to the subject matter hereto and shall supersede any prior written or oral agreements or communications between the Parties pertaining to such subject matter. Page 16 of 24 55A-28 IN WITNESS WHEREOF, the Parties hereto have caused this agreement to be duly executed as of the date and year first written above. [SIGNATURES APPEAR ON FOLLOWING PAGE] Page 17 of 24 55A-29 ATTEST: City Clerk SCE: SOUTHERN CALIFORNIA EDISON, a California corporation By: PETE DIETRICH Its: BUYER: CITY OF SANTA ANA, a California charter city and municipal corporation By: Page 18 of 18 55A-30 Exhibit A Description of Facilities Exhibit A-2 55A-31 0 0 •+ N m m m o m e N N a a a a a e e a a m ry m ry ry n m m m mr m wm .i m m ry a m ti m m m mm,y a m is o m io i�mzmm:� ry m $ m ry .+ommmoHm m o m m eti6e�n m o .. .an ry m en o.rv-i-i m N �^S m01 n o am mm�o �.+m Pmr n�mmmm��� vmrmNma m,'�i n '� ee'".mimromrvmmn o.-� m ma a tO VO1im n'" ro S '.� rvm�am am�a rmmm n o Nm .+omm n rn n n nrmemmm n Nrom n n n r n r n r ri n n rv� rti mm n m Sri �i m m m m n m o m r m m m m n m m n n m m n n m m m n n m n n m m n n m memo n n n n m n n mmmm n n n m mry mr a.+a.+mn.+.ynmmmmm mom.+ma.+ ma inH min SS om o oM �o a am om vmiroroN romm'i Om'm °1m � o ^roromi^n m.+.rvi z.mnn m.i mo n � om m �.i ry m m e em�nmann �O � omrvm ry n nn ai a.+o�ooe m e ono an m n"a "��i: .i 'n 'gym °j w ^m OR ^m w ^m w m m m m m m mm�aoaam m m m ^m w m m w �c m Qom m m m w w ro w ro ro w rvrvdm ro ro m m mm m w mdm m m O1 rvar�nmc�nm m m m m ro m w w w N N �m`I N N N N N C N N N m N N m m N N N N N N N N N N N N m m fmV N N N fmV N N N N N N N N N N N N N N N J S J S J J S S J J S S J J o S$ J O o O O 0 0 O a 0 O O 0 0 S° 0 S S S S S S S S S 8 S O S S g J J S S J S J J S S J J. 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O p O O O O 00 0 00 O O a N N b O O O O o p O O O N b p 0 0 0 0 0 0 N 0 0 0 0 O N p N N 0 0 0 T N b .bi N m 'i N fi N m Oi N N N N T n N ONi T N Ot T N •i r. fi `i y V�1 � Po� m r m ei n � T M N m M h T fl ei vl vl N 0 0 o a ¢ a ¢ z a ¢ o u z G � � J r,.' a o G z a w�� w N x w �< a N G o c p¢ t� c 3 3 0 3 a o z a w z a z z w N o "�' w a° p¢ 0 q� 3 z w o z'0 a z 5�t \ 3 5 S o° o o N z z o m G o n w Nz °z zu� aiGG3w NmN N 3 m m? o voi m b¢ o�"a-u �- .NOiNma' ��- ei"3wdzdiGG j'z z$ " N3nNNmN"' N z G of w > G z 3 z a 3 w w z w z o N N z o 3 z z m n x 3¢ G w k a a N 3¢ z° 3 ¢ K a a x° o o z >> 3 z w N z v'"i _ 3 .. � a� ., 3� N�° 3 x� 0 0 n b N m m m m m m m o o o 0 o o m mmm m m m� rn m m a ti m m m m m m m o m m N ti N ti - - x - ¢ ¢ - - - `o_ `o_ `a `o a — — o 0 0 0 `o_ `o_ o `o `o 0 'a 'a `a 'v 'v aaaaa a'a v9v 9'v b'v aaa_vo '¢ � vva v 999v'a o '¢ a ¢ ¢ a ¢ a a ¢ a ¢ a ¢ ¢ a ¢ a i a a ¢ ¢ a ¢ ¢ ¢ a a a ¢ ¢ ¢ a ¢ ¢ ¢ ¢ ¢ a ¢ ¢ a ¢ a ¢ ¢ a ¢ a a m m w 'wO w n o �o m ry e m m ti m m� a c m .1pi m .Ni m m,. m a^oro a '"nn ,a.m.Ni oo eomn�$ma �� b pb o m ry m ry N m n oN m a o m m naiNm"""w ^n m M�^ n nnON n �aennn��nromown° m w.. u^i�nnn°mn�oo�N 55A-178 Exhibit B Form of Bill of Sale BILL OF SALE Pursuant to that certain Purchase And Sale Agreement, dated 2016("Agreement"), by and between Southern California Edison, a California corporation ("SCE"), and the City of Santa Ana, [a Municipal Corporation and Charter City] ("Buyer"), effective as of , 20_ [Insert Closing Datel, SCE hereby sells, assigns, transfers and delivers to Buyer all of SCE's right, title and interest in and to the property described in Attachment A ("Facilities"), attached hereto and hereby incorporated herein by this reference. All capitalized terms not defined in this Bill of Sale shall have the meanings given them in the Agreement. THE FACILITIES ARE BEING TRANSFERRED "AS IS, WHERE IS, AND WITH ALL FAULTS" IN THEIR EXISTING CONDITION, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND BY SCE, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE AGAINST SCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE FACILITIES, THE PROSPECTS (FINANCIAL AND OTHERWISE) OF THE FACILITIES, THE QUALITY OF WORKMANSHIP OF THE FACILITIES, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. SCE FURTHER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING POTENTIAL ENVIRONMENTAL HAZARDS, THE PRESENCE OF HAZARDOUS SUBSTANCES, COMPLIANCE OF THE FACILITIES OR THE LAND WHERE THE FACILITIES ARE LOCATED WITH ENVIRONMENTAL REQUIREMENTS, OR LIABILITY OR POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL REQUIREMENTS. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SCE IS NOT ASSIGNING OR OTHERWISE TRANSFERRING ITS RIGHT, TITLE AND INTEREST IN AND TO ANY LAND RIGHTS (OR ANY CLAIM, RIGHT OR BENEFIT ARISING UNDER OR RESULTING FROM SUCH LAND RIGHTS) IN CONNECTION WITH ITS SALE OF THE FACILITIES TO BUYER, AND BUYER ASSUMES ANY AND ALL RISKS AND LIABILITIES IN CONNECTION WITH THE ABSENCE OF ADEQUATE OR APPROPRIATE LAND RIGHTS. This Bill of Sale is executed pursuant to the authorization contained in the order of the California Public Utilities Commission in its Decision No. dated , and is subject to all the terms and conditions of the Agreement, including the provisions set forth above. Exhibit B-1 55A-179 The parties represent that they are duly authorized to execute this Bill of Sale. SOUTHERN CALIFORNIA EDISON COMPANY, a California corporation By: Pete Dietrich Sr. Vice President, T&D Accepted and Agreed: BUYER: CITY OF SANTA ANA, a California charter city and municipal corporation 0 Name: Title: Exhibit B-2 55A-180 55A-181 x x x x x x x x x x x x x x x x x x x x x c� w u N (tl N C1, C7 � aj C } W yyryry J.� ���C�ssFF b w od w 46 a a❑i 'es' `� —`ry c c E O q m w OL ems^ '�:: .�C -dl 4T C U C 6. 11 N IF N m N N m12 CV N N +"I N N N N ,71111, v Cy 6 7 Ui 6 0 t6 6 47! 44 16 U6 0 6 th C r X w 55A-182 Exhibit E Communications Equipment 55A-183 _ w 3 3 G g z G hM M N 2 3 S g d S ^ o a o ¢ Y Y Y o 5 Y Y k Y Y Y o Y Y 9 a G r G G G G G k G G G F F F F K G G ° 8 8 8 8° 8° B S 9 6 "H & '�" M 'm ^ a $ A p � q 'P'pe � I � � � � :Y qI B � S q� �. �% A p 9 "d R e S f. p N i pr b 7 3 9 m 2 3 e G 5 V^e 2 F F v& 8 T 4e F G F 5 S 8 e 3 a s a a a a a a s a a a m a a a a a a s a s a a a Y 9 3 g $ pg p 3 E g 55A-184 ) (;: ! ! ( i ( |=!I)) !!)]))!)) ()(]](()] SSA.185 m m n n o rn 0rco � 0rco rnco co U� m m v 3 M M In O 0 o n rn n a` �"=rrco co - �aimmco U J M m m M w W W w W W W W U U U U Z Z Z Z 0000 0 0 0 0 U a aH � H H a 2 2 2 S U J J J J W W W w 0 W W W w � KKK K a (n (n (n (n N U w w W w � �cornrr tom ono 0 QQQQ o Q ¢ Q Q a QQQQ U Z Q Z Q Z Q Z Q (n (n (n (n 0 w 0 K > 0 (n Q W J E w 3m (n = K N Z (n Z O> U> w �: Z W �l oo o 0 o n CO N J J J J Q Q Q Q H H H H (n (n (n N Z Z Z Z 0000 W W W w NwwF- I- �6aaaa J J J J y2222 0000 Eo°Jnu°�i m 0 0 0 0 �0000 oaaaa .=wwww inKKKK cG N N (V M 55A-186 EXHIBIT 5 NO -FEE LIGHT POLE LICENSE AGREEMENT FOR WIRELESS ATTACHMENT BETWEEN THE CITY OF SANTA ANA AND SOUTHERN CALIFORNIA EDISON This No -Fee Light Pole License Agreement ("Agreement") is made as of , 2016 ("Effective Date"), by and between the City Of Santa Ana a California charter city and municipal corporation ("Licensor"), and Southern California Edison Company, a California corporation ("Licensee"), individually "Party" and collectively "Parties." Licensor herein provides Licensee a no -fee license to attach certain wireless communication equipment to light poles that are owned by Licensor and used by Licensor to provide street lighting services to customers. The terms and conditions of this Agreement are as follows: 1. DEFINITIONS Terms with the initial letter or letters capitalized, whether in the singular or plural, shall have the following meanings: a. Applicable .Requirement: Any, law, code, regulation, ordinance, statute or requirement of a governmental or quasi -governmental authority, regulatory agency or any other similar authority with jurisdiction or control over access to or use of the Light Pole, an Attachment, Work on a Light Pole or operation of an Attachment b. Attachment:: SCE -owned and operated radio equipment, and all of its associated ancillary equipment, used for the collection and relay of data from meters and the collection relay, and 'communication with SCE distribution systems, identified in Exhibit A hereto. C. Custom Light Pole: A specialized light pole, owned and installed by Licensor and paid for by Licensee, for the purposes of accommodating Licensee's Attachment and for Licensor to provide street lighting services. d. Equipment: All ancillary equipment owned and utilized by Licensee in connection with an Attachment, and installed on third party property. e. Light Pole: A Licensor Light Pole or a Custom Light Pole. f. Licensor Light Pole: A standard light pole owned by Licensor used to provide street lighting services. -1- 55394.00025\29221101.1 55A-187 g. Work: Any work performed by Licensee relating to an Attachment, including the installation, repair, removal or replacement of the Attachment or Equipment. TERM The initial term of this Agreement shall be ten (10) years, with automatic renewal terms of three (3) years each, provided, however, that either Party may terminate this Agreement by written notice to the other Party ("Termination Notice"). During the initial ten (10) year term the Termination Notice must be given not more than two (2) years and not less than one hundred eighty (180) days prior to the expiration of the initial term. During each subsequent renewal term the Termination Notic6;tnust be given not less than two (2) years prior to the expiration of any succeeding term Upon the issuance of a Termination Notice by either Party, only Licensee's rights to install Future Attachments as described in this Agreement shall terminate, but L icbnsee's rights under this Agreement with regard to then -installed Attachme's and Upgrad`ec'ttachments shall not terminate. ATTACHMENTS The installed Attachments Licensee shall have the right (i) to u same purpose as the Attachments li to install new Attachments that are long as such Upgraded the Attachments listed exclusively for License( manner with any then= Attachments and Futu manner. 4. in Exhibit, A hereto. During the term hereof, Lttachments to new technology that serves the .xhYbit S ("Upgraded Attachments"), and (ii) d inEA,t; it A (`Future Attachments"), so v re Attachments serve the same purpose as are ow+ped exclusively by Licensee and used for n6.-,, ird party, and do not interfere in any sox equipment. All installations of Upgraded s sh Il be performed in in a good and workmanlike RIGHTS Licensee shall havea no -fee license to use the Attachment for its own wireless communications,,as described herein, and to maintain, remove, repair or replace the Attachments, as, described herein (collectively, the "Attachment Rights"). All costs and expenses incurred-by,Licensee as a result of Licensee's exercise of its Attachment rights hereunder shall be the sole responsibility of Licensee. 5. CONDITIONS AND RESTRICTIONS ON LICENSE RIGHTS In addition to the other terms and conditions of this Agreement, Licensee's exercise of its Attachment Rights shall be subject to the following conditions and restrictions: a. Licensee shall operate its Attachment exclusively for its own and no third party's wireless communication equipment. 55394.00025\29221101.1 -2- 55A-188 b. Licensee shall be solely responsible for separately obtaining any electric utility or other services required for operation of its Attachment, if secondary power from the streetlight is inaccessible. C. Licensor shall not be required to modify the Light Pole to accommodate use by the Licensee. d. Licensor shall not install any Equipment for the Licensee, Licensee shall be solely responsible for the installation of any Equipment pursuant to validly -issued permits and approvals e. Except as set forth in Section 5(f), Licensee's rights regarding Upgraded Attachments and/or Future Attachments shall not interferewith Licensor's municipal operations. If an Attachment made under this Agreement interferes with Licenser's ability to use a Light Pole for any purpose, then Licensor will inform the Licensee and Licensee shall remedy the interference in a reasonably prompt period of time after receiving notice of the interference from Licensor. f. Licensor shall not install any devices ;that interfere with Licensee's then - existing Attachment, and Licensor shall not allow third parties to install any devices that interfere with Licensee's then-existingAttacltment. If Licensor interferes with Licensee's then -existing wireless communication, then °Licensor shall remedy the interference in a reasonably prompt period of time after receiving notice of the interference from Licensee. g. Prior to commencing any work or activity affecting any Light Pole, Licensee shall provide Licensor with not less than five (5) business days prior notice. 6. ATTACHMENT a. Licensee shall be allowed to install Future Attachments at additional locations under this Agreement upon reasonable prior notice to Licensor; provided, however, Licensor may disapprove proposed Future Attachments in the event Licensor reasonably determines the proposed Future Attachments may interfere with any municipal operations or Licensor equipment. Licensee shall provide Licensor the structure number and address or location description where, Licensee seeks to install the Attachment. b. Licensee shall use commercially reasonable efforts to perform any Work in a manner which will not cause any interruption of Licensor's street -lighting services or other equipment. C. All Work shall be performed at Licensee's sole risk and cost and shall be performed in a good and workmanlike manner, in compliance with all Applicable Requirements, and Licensee shall indemnify, defend and hold harmless Licensor, its elected officials, staff, directors, invitees, employees, agents, contractors, successors and assigns, from any and all costs, liabilities, claims and expenses, including those from death or injury to any person or from a loss or damage to any real, personal or other property, to the extent 55394.00025\29221101.1 -3- 55A-189 arising out of or pertaining to any Work, or any act or failure to act by any of Licensee's employees, agents, or contractors in relation to the Upgraded Attachments and Future Attachments. d. The performance of any Work shall comply with the requirements for such Work as contained in applicable industry standards, specific work requirements imposed by Licensor or a third party, and in any Applicable Requirements associated with the Work. e. Upon written notification from Licensor or a government authority that the Attachment or any Equipment is out of compliance with any Applicable Requirement or is unsafe or hazardous, Licensee shall promptly take whatever --actions are necessary to come into full compliance with such Applicable Requirements or to remedy the unsafe or hazardous condition, as the case may be. Notwithstanding,&ny other provision of this Agreement, if at any time, in Licensor's sole judgm��ut;"an unsafe' or dangerous condition exists, Licensor shall immediately notify Licensee,ad✓Lice nsee shal`have twenty-four (24) hours from such notice to remedy the unsafe or dangerous condition :f Licensee does not remedy the unsafe or dangerous condition f, Ja such tti 0nty-four (24) hour period, then w� Licensor may correct such condition and notify LYcensee''of such correction within three (3) business days. If at any time, in Licenser's soent, an imminent threat to human life or safety exists, Licensor may .ebrrect such c tion and notify Licensee of such correction within three (3) business da-ks f. Licensee shall not drill, burn or, punch any holes in a Light Pole, without first obtaining written consent frrsxzi Licensor; which consent shall not be unreasonably withheld. Licensee shall reimburse Licensb"for any damage to any Licensor Light Pole in connection with the use, repair, restoration or replacement of a Light Pole by Licensee. g. Licensee shalLfollow Licensor's established procedures to request Licensor to replace a Licensor Light •Pole with a Custom Light Pole, and Licensee shall be solely responsible for all coats of such request and any resulting replacement. 7. REMOVAL OF AN -,,ATTACHMENT FROM A LIGHT POLE a. Licensee may' at any time remove an Attachment from any Light Pole in compliance with Applicable Regulations. b. Nothing in this Agreement shall be construed to limit Licensor's rights, at any time, to remove a Light Pole from service or to require Licensee to remove its Attachment from a Light Pole that is being removed from service. In the event Licensor requires Licensee to remove its Attachment from a Light Pole that is being removed from service, then Licensor will notify Licensee ninety (90) days prior to the removal and use reasonable efforts to supply Licensee with an alternative Light Pole for such Attachment. Licensee shall complete removal of its Attachment within ninety (90) days of Licensor's request to do so. C. Whenever Licensee removes an Attachment, Licensee shall restore the Light Pole to its original condition, reasonable wear and tear excepted, except where Licensor 55394.00025\29221101.1 -4- 55A-190 notifies Licensee that restoration is unnecessary because the Light Pole is being removed from service or Licensor agrees otherwise in writing. d. When a Light Pole that contains an existing Attachment is relocated or replaced by Licensor, and there is a suitable other location for a new Light Pole or an existing Light Pole which could be used by Licensee for its Attachment, then Licensor and the Licensee may agree that Licensee may so use the other location or Light Pole and amend Exhibit A to reflect the transfer of Licensee's Attachment Rights. Except in emergency situations, Licensor will notify Licensee ninety (90) days prior to relocation or replacement of Light Pole. 8. RISK OF LOSS; RESTORATION OR REPAIR OF LIGHT POLE In the event a Light Pole is damaged or Light Pole shall take priority over Licensee's ri Licensor shall not unreasonably delay Licen Attachment. Licensor shall permit License Attachment, as long as such restoration effort: activities. In addition, Licensee shall fully coop repairs or other work on the Light Pole„ which Licensee's Attachment. The Licensor shall of planned repairs that will require a shutdown"c 9. REGULATORY MATTERS oyed, restoration of Licensor's use of a tion of its use; provided, however, that opportunity to restore the use of its make repairs to 'restore use of the ot-interfere with Licensor's restoration with Licensor if Licensor performs any rsay require a temporary shutdown of he Licensee at least 48 hours prior to Licensee's Attachment. To the extent that°this Agreement is subject to the jurisdiction of any regulatory authority, Licensor and Licensee acknowledge that this Agreement may be subject to such changes, modifications or termination as that regulatory authority may direct from time to time in the exercise of its jurisdiction. 10. INDEMNIFICATION AND LIMITATION OF LIABILITY a. Licensee shall indemnify, defend and hold harmless Licensor, its elected officials, staff, directors, invitees, employees, agents, contractors, successors and assigns, from any and all costs, liabilities, claims and expenses, including those from death or injury to any person or from a loss or damage to any real, personal or other property, to the extent arising from any negligent act or omission by Licensee, or by any of Licensee's employees, agents, or contractors in performing this Agreement. b. Licensor shall indemnify, defend and hold harmless Licensee, its affiliates and each of their directors, invitees, employees, agents, contractors, successors and assigns, from any and all costs, liabilities, claims and expenses, including those from death or injury to any person or from a loss or damage to any real, personal or other property, to the extent arising from any negligent act or omission by Licensor, or by any of Licensor's employees, agents, or contractors in performing this Agreement. 55394.00025\29221101.1 -5- 55A-191 C. The indemnified Party shall promptly notify the indemnifying Party or of the existence of any matters to which indemnifying Party's indemnity obligations apply. Upon demand by indemnified Party, the indemnifying Party shall defend at its own expense with mutually acceptable counsel any such matter; provided that indemnified Party shall at all times also have the right to fully participate in the defense and consent to any settlement or compromise. d. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOSS OF THE OTHER PARTY'S CUSTOMERS OR GOOD WILL, OR LOST REVENUE OR PROFITS), FC .ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, ARISING IN -',.ANY MANNER FROM THIS AGREEMENT OR THE PERFORMANCE OR NON-PELtFOR.l11NCE OF OBLIGATIONS HEREUNDER, REGARDLESS OF THE CAUSE OR k ORESEEABIhITY THEREOF. 11. TITLE AND RISK OF LOSS a. Licensor shall have and retain so and Licensor's ownership shall not be affected b. Except as otherwise prc the Attachment and any Equipment 12. INSURANCE At all times during the term of require its subcontractors that perforn insurance coverage as described below: ze ownership of all Light Poles, Attachment to the Light Pole. shall retain its ownership of reement, Licensee shall maintain and shall ork pursuant to this Agreement to maintain a. Workor's Compensation Insurance with statutory limits, in accordance with the laws of the State of ;California, and Employer's Liability Insurance with limits of not less than one million dollars ($1,000,000). Licensee shall require its insurer to waive all rights of subrogation against Licensor, its officers, agents and employees. b. Comprehensive Bodily Injury and Property Damage Liability Insurance, including owner's and contractor's protective liability, product/completed operations liability, contractual liability and automobile liability, with a combined single limit of not less than two million dollars ($2,000,000) for each occurrence. Such insurance shall (i) name Licensor, its officers, agents, and employees as additional insureds, but only for Licensee's acts or omissions; (ii) be primary for all purposes; and (iii) contain standard cross -liability provisions. Written proof of compliance with the requirements of this Section, consisting of Certificates of Insurance and a copy of the Additional Insured Endorsement to Licensee's insurance policy(s), in a form acceptable to Licensor, shall be provided to and approved by Licensor prior to any Attachment or the installation of any Equipment upon an Light Pole 55394,00025\29221101.1 -6- 55A-192 and prior to the expiration of each policy year thereafter. The Certificates of Insurance shall provide that this insurance shall not be terminated, canceled or reduced except on thirty days' prior written notice to Licensor. Failure to provide and maintain such insurance shall constitute a default under this Agreement. 13. REMEDIES IN THE EVENT OF DEFAULT If either Party fails to comply with a material term or condition of this Agreement, the non -breaching party shall provide written notice to the defaulting party of such non- compliance. The breaching party shall then have thirty (30), days (except in the case of health and safety issues or graffiti, which shall require cure within forty-eight (48) hours) from receipt of such notice to reasonably cure such non-compliance. If such a cure is not completed within the thirty (30) day period (or 48 hour period; as provided above), or if a cure is not possible within such period and the breaching party has! not taken steps to effect such cure, then the non -breaching party may pursue its legal remedies. relating to such non- compliance. 14. DISPUTE RESOLUTION a. Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in this Section 14. To be eligible for resolution under this Section 14, all disputes concerning payments must be invoked within sixty (60) business days of the payment due date. b. Licensor and Licensee, shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between an authorized representative of each .of the Parties. Any.dispute that cannot be resolved between the authorized representative shall be referred to an officer or designee of Licensee and Licensor. Licensor or Licensee shall give the other Party written notice of any dispute following expiration of the applicable cure period pursuant to Section 13. Within twenty (20) business days after delivery of such notice, the designated parties shall meet at a mutually acceptabletime and place,: and thereafter as often as they reasonably deem necessary to exchange information and to attempt to resolve the dispute. If the matter has not been resolved within thirty (30)' days of the first meeting, the Parties will consider and decide whether the dispute should be submitted to JAMS, or its successor, for mediation. C. All negotiations and any mediation conducted pursuant to this Section 18 shall be confidential and shall be treated as compromise and settlement negotiations, to which Section 1152.5 of the California Evidence Code shall apply, which section is incorporated in this Agreement by reference. d. Notwithstanding the foregoing provisions, either Licensor or Licensee may seek immediate equitable relief, a preliminary injunction or other provisional judicial remedy. 55394.00025\29221101.1 -7- 55A-193 e. Licensor and Licensee shall continue to perform their obligations under this Agreement pending final resolution of any dispute arising out of or relating to this Agreement. f. If Licensor and Licensee, after good faith efforts to resolve a dispute under the terms of this Agreement (as provided in Subpart b above), cannot agree to a resolution of the dispute, either party may pursue whatever legal remedies may be available to such party, at law or in equity, before a court of competent jurisdiction and with venue in Los Angeles County, California. 15. TAXES AND LIENS Licensee shall pay when due any and all taxes or'asse§sment resulting from any Attachment on any Light Pole including, but not limited to` ,special assessments and governmental fees of any kind whatsoever which ,nay be levied,'or, assessed upon any personal property which Licensee has caused to b placed or maint�4retpd upon Licensoe's facilities, or against Licensee's business and shall keep Ticensor's property and facilities, including any Light Poles, free from all liens, meludiniit not limited to mechanics liens, and encumbrances by reason of the use, occupancy, br' maintenance of Licensor's facilities or property by Licensee or by any person, claiming ubx�t1a Licensee. It is further agreed that in the event Licensee fails to pay the yo�6, mentioned',taxes, assessments, or liens when due, Licensor shall have the right to ,pay the "same a6& nvoice Licensee for the amount thereof and Licensee shall pay the siwbe,upan de and together with interest at the maximum rate allowed by from the date of such expenditure by Licensor. 16. NOTICES Notices hereunder must be'in writing and transmitted by United States mail or by personal delivery,tq Licensor., Such notices shall be deemed given: (a) upon receipt in the case of personal delivory or confirmed facsimile transmittal; (b) two (2) days after it is sent by certified mail, with a return receipt requested, (c) three (3) days after deposit in the mail, or the nk: day in the event of overnight delivery. If to Licensor: City of Santa Ana Attention: Tyrone Chesanek, P.E. 20 Civic Center Plaza Santa, CA 92701 If to Licensee: Southern California Edison Manager of Streetlights Attention: John King 6042 A Irwindale Ave, Irwindale CA 91702 55394.00025\29221101.1 -8- 55A-194 17. DISCLAIMER LICENSOR MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER CONCERNING THE SUITABILITY OR CONDITION OF ANY LIGHT POLE. FURTHERMORE, IT IS SPECIFICALLY UNDERSTOOD AND HEREBY ACKNOWLEDGED BY LICENSEE THAT ANY LIGHT POLE MADE AVAILABLE HEREUNDER, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, WILL BE PROVIDED BY LICENSOR ONLY ON AN "AS -IS" BASIS AND WITHOUT ANY WARRANTY BY LICENSOR ABOUT THE CONDITION OF THE LIGHT POLE OR ITS SUITABILITY FOR LICENSEE'S PURPOSES. FURTHER, LICENSEE'S RIGHTS HEREUNDER SHALL BE SUBORDINATE TO LICENSER'S USE OF THE LIGHT POLE FOR MUNICIPAL SERVICES. 18. GENERAL PROVISIONS a. California Law. This Agreement„ and performance pursuant to it, shall be governed, interpreted, construed, and regulated ;.by..,the laws of the State of California, without reference to its conflicts of laws provisions. b. Assignment. Neither Party may assign, transfer, sublease, or sublet any right, obligation, or privilege given to it hereunder without the prior written consent of the other Party. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties hereto. c. Interpretation. The language of each part of this Agreement shall be construed simply and according to:its fair meaning, and'shall never be construed either for or against either Party, regardless of which Party may have drafted the provision. d. Nature of Rights. Nothing in this Agreement shall preclude Licensor from granting any third -party permission to use available capacity on a Light Pole in ways that do not interfere with the rights granted to Licensee under this Agreement. e. Invalidity of Provisions. To the extent that any terms or provisions of this Agreement shall be finally determined by a court of competent jurisdiction to be invalid, (i) such invalidity shall not affect, release or modify any other terms or provisions, and (ii) in lieu of each such provision which is invalid, illegal or unenforceable, there shall be substituted or added as part of this Agreement a legal, valid and enforceable provision which shall be selected to be as similar as possible, in achieving the economic and business objectives of the Parties, to such illegal, invalid or unenforceable provision. f. Waiver. The failure of either Party to enforce any provision of this Agreement or the waiver thereof in any instance, including but not limited to the right to terminate, shall not be construed as a general waiver or relinquishment on its part of any such provision but the same shall nevertheless be and remain in full force and effect. 55394.00025\29221101.1 -9- 55A-195 g. Incorporation Clause. This Agreement, including attached Exhibits, incorporate all the covenants and understandings between Licensor and Licensee regarding the subject matter of this Agreement. No other verbal agreements or understandings exist between the Parties nor shall any be binding upon either Licensor or Licensee unless reduced to writing and signed by the Parties. Any addition, variation or modification to this or any other Agreement shall be ineffective unless made in writing and signed by the Parties. h. Radio Frequency Emission ("RFE") Compliance. its sole cost and expense, for ensuring compliance with Licensor will cooperate with Licensee, where possible, to signage on a Light Pole where this is necessary to comply v Licensee shall use its best efforts to minimize the RFE in future uses of the Light Pole. i. Exhibits. Exhibits referenced Licensee shall provide any updates of Exh: Licensor's written request, delivered pursuan often than once each calendar quarter. Spec hereto are: Exhibit A: List of h j. Confidentiality. N applicable non -disclosure or oonf without the prior consent of the related to this Agreement to a' information. SIGNATURES 55394,00025\29221101.1 -10- Licensee shall be responsible, at all regulations relating to RFE. allow Licensee to place required regulations. In addition, health of workers and on by said reference. lsor within thirty (30) days of of this Agreement, but not more d as exhibits to this Agreement any language to the contrary in any ment between the Parties, Licensor may, le confidential or proprietary information or regulatory entity that requests such 55A-196 By signing below, the signatories hereto represent and warrant that they have been duly authorized to sign this Agreement on behalf of the Party for whom they sign. CITY OF SANTA ANA SOUTHERN CALIFORNIA EDISON a Municipal corporation COMPANY, a California corporation By: By: Print Name: Pete Dietrich Name: Title: Title: Sr. Vice President of Transmission and Distribution Date: Date 55394.00025\29221.101.1. -11- 55A-197 55394.00025\29221101.1 -12- EXHIBIT A Last of Attachments SmartConnect Installed Devices NetComm Installed Devices 55A-198 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: RESOLUTION CONDEMNING THE JANUARY 2017 PRESIDENTIAL EXECUTIVE ORDERS ON IMMIGRATION ENFORCEMENT AND REFUGEES (STRATEGIC PLAN NO. 5, 6F) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: W904 _. r. ❑ As Recommended ❑ As Amended ❑ Ordinance on 1a' Reading ❑ Ordinance on 2na Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution condemning the January 2017 Presidential Executive Orders on immigration enforcement and refugees. DISCUSSION At the February 7, 2017 meeting, by a vote of 4-2 (Pulido and Villegas dissented; Martinez absent), the City Council directed staff to prepare a resolution condemning President Trump's anti -immigrant Executive Orders regarding withholding funds from sanctuary cities and barring certain immigrants and refugees from Muslim -majority countries from entering the United States (Exhibit 1). Shortly after his inauguration, U.S. President Donald Trump issued three Executive Orders pertaining to immigration issues. On January 25, 2017, President Trump issued "Executive Order: Border Security and Immigration Enforcement Improvements", which directs federal funding to the construction of a physical wall or similarly secure, contiguous, and impassable physical barrier along the Mexico-U.S. border. It instructs the Secretary of Homeland Security to prepare congressional budget requests for the wall and to "end the abuse of parole and asylum provisions" pertaining to the removal of undocumented immigrants. Other sections of the Executive Order include the hiring of 5,000 additional Border Patrol agents, the building of facilities to detain undocumented immigrants at or near the Mexico-U.S. border, and ending "catch -and -release" protocols, in which immigrants are routinely released in the United States shortly after their apprehension for violations of immigration law. That same day, President Trump also issued "Executive Order: Enhancing Public Safety in the Interior of the United States". This Executive Order provides the Secretary of Homeland Security with the authority to designate a jurisdiction as a sanctuary jurisdiction, and to ensure that those 55B-1 Resolution Condemning the January 2017 Presidential Executive Orders February 21, 2017 Page 2 jurisdictions are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary of Homeland Security. Finally, on January 27, 2017, President Trump issued "Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States", which suspends all refugee admissions for 120 days, bars entry of all people from the Muslim -majority countries of Iraq, Iran, Libya, Somalia, Syria, Sudan, and Yemen for a period of 90 days, and suspends the Syrian refugee program indefinitely. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit upheld a lower federal court ruling that blocked enforcement of this Executive Order, finding in part that the government had shown "no evidence" that anyone from these seven nations had committed terrorist acts in the United States. The City of Santa Ana is home to immigrants and refugees. According to the U.S. Department of State's Bureau of Population, Refugees, and Migration, 7,909 refugees have resettled in communities throughout California in Fiscal Year 2016 alone. Furthermore, the U.S. Census Bureau's 2015 American Community Survey reports that approximately 46 percent of the City's population consists of foreign -born individuals. During the February 7, 2017 meeting, the City Council expressed concerns regarding the adverse impacts that President Trump's Executive Orders may have on the community. Consistent with the direction provided, staff prepared a resolution for consideration that is responsive to their discussion. Additionally, to better understand the context of the resolution, staff identified and reviewed resolutions of similar content from twelve other jursidictions from seven different states. This resolution is indicative of the City's commitment to social justice and inclusion. 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. Resolution 55B-2 jmf 2.15.17 RESOLUTION NO. 2017-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CONDEMNING THE JANUARY 2017 PRESIDENTIAL EXECUTIVE ORDERS ON IMMIGRATION ENFORCEMENT AND REFUGEES Whereas, the City of Santa Ana has long embraced and welcomed individuals of diverse racial, ethnic, religious, and national backgrounds, including a large immigrant population; and Whereas, according to the U.S. Department of State, 7,909 refugees have resettled in communities throughout California in Fiscal Year 2016 alone, and the U.S. Census Bureau's 2015 American Community Survey reports that approximately 46 percent of the City's population consists of foreign -born individuals; and Whereas, the City of Santa Ana welcomes, honors, and respects the contributions of all of its residents, regardless of their immigration status; and Whereas, 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; and Whereas, 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; and Whereas, 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; and Whereas, 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, adapted Resolution No. 2016-086 declaring the City of Santa Ana a sanctuary for all its residents, regardless of their immigration status; and Whereas, on January 17, 2017, the City Council further enacted Ordinance No. NS-2908 to establish procedures consistent with Resolution No. 2016-086, including a prohibition on the use of City funds, resources, facilities, property, equipment, or personnel to assist in the enforcement of federal immigration law, unless such assistance is required by any valid and enforceable federal or state law; and EXHIBIT 1 Resolution No. 2017-XXX Page 1 of 4 55B-3 imf 2.15,17 Whereas, on January 25, 2017, President Donald J. Trump signed an executive order entitled "Enhancing Public Safety in the Interior of the United States" with a stated purpose to deny federal funds to anyjurisdiction designated by the United States Attorney General as a sanctuary jurisdiction; and Whereas, on January 25, 2017, President Donald J. Trump signed an executive order entitled "Border Security and Immigration Enforcement Improvements" that directed federal funds to be used to build a wall on the southern border of the United States with Mexico; and Whereas, on January 27, 2017, President Donald J. Trump signed an executive order entitled "Protecting the Nation from Foreign Terrorist Entry Into the United States" that suspended all refugee admissions for 120 days, barred entry of all people from the Muslim -majority countries of Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen for a period of 90 days, and suspended the Syrian refugee program indefinitely; and Whereas, on February 9, 2017, the United States Court of Appeals for the Ninth Circuit upheld a lower federal court ruling that blocked enforcement of the January 27, 2017 Executive Order, finding in part that the government had shown "no evidence" that anyone from these seven nations had committed terrorist acts in the United States; and Whereas, the City Council of the City of Santa Ana believes that the above Executive Orders strongly betray the longstanding principles, values, and traditions of not only the City of Santa Ana but also those of the United States of America. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana as follows: Section 1. The City of Santa Ana hereby condemns President Donald J. Trump's Executive Order of January 27, 2017, often referred to as the "Travel Ban", on the basis that it is contrary to the values of openness and inclusion of the City of Santa Ana and to the ideals upon which the United States of America was founded as a population of persons that at one time were all immigrants or refugees from some other country. Section 2. The City of Santa Ana hereby further condemns President Trump's Executive Order of January 27, 2017 on the grounds that it is contrary to the fundamental right of due process, serves to separate families, and sends the message that refugees and immigrants, those persons upon which the fabric of American life has been built, are no longer welcome. Section 3. The City of Santa Ana hereby condemns President Trump's Executive Order of January 25, 2017, threatening to withdraw federal funding from jurisdictions determined to be sanctuary jurisdictions on the grounds that it attempts to federalize local law enforcement, interferes with the ability of local law enforcement to EXHIBIT 1 Resolution No. 2017-XXX Page 2 of 4 55B-4 Jmf 2-15-17 investigate criminal activity and protect its residents, is unconstitutional, and threatens to reduce or eliminate services to Santa Ana residents that are due them by the government. Section 4. The City of Santa Ana implores President Trump to repeal the Executive Orders of January 25, 2017 and January 27, 2017, on the basis that they are contrary to traditional American values of acceptance, inclusion, and the idea of the American Dream, Section 5. Copies of this Resolution, as filed with the Clerk of Council, shall be sent by the Clerk of Council to the President and Vice President of the United States, the Majority and Minority Leader of the United States Senate, the Speaker and Minority Leader of the United States House of Representatives, and every member of Congress elected from the City's geographic area. Section 6. 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 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By John M. Funk Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers 2017. Miguel A. Pulido Mayor EXHIBIT 1 Resolution No. 2017-XXX Page 3 of 4 55B-5 Imf 2.15-17 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of the Council, do hereby attest to and certify that the attached Resolution No. 2017-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana EXHIBIT 1 Resolution No, 2017-XXX Page 4 of 4 55B-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: RESTRUCTURE CITY COUNCIL COMMITTEES, ESTABLISH MEETING SCHEDULE AND APPOINT MEMBERS {STRATEGIC PLAN NO. 5, 1} CITY M NAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n6 Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Adopt resolution rescinding current council committees and establish the following staffing council committees as recommended by staff, or as otherwise directed by the City Council. • Community Services Committee (and Joint Santa Ana Unified School District and City Council Committee) • Economic Development, Infrastructure and Technology Committee • Legislative Affairs, Ethics and Transparency Committee • Public Safety, Code Enforcement and Neighborhood Empowerment Committee 2. Establish a meeting schedule for each standing committee.. 3. Appoint 2 to 3 City Council members on each committee. DISCUSSION The City Council first established Council Committees in 1999. Since then, they are periodically reviewed to ensure that the diverse issues and challenges facing the City are adequately addressed. Currently the City Council has 6 established committees as follow: • Development and Transportation Committee • Public Safety and Neighborhood Improvement Committee • Parks, Recreation, Education & Youth (PREY) Committee; and Joint Santa Ana Unified School District and City Council Committee • Code of Ethics and Conduct • Finance, Economic Development and Technology Committee • Legislative Committee 65A-1 Restructure City Council Committees February 21, 2017 Page 2 At the February 7, 2017 City Council Meeting the matter was agendized for discussion and staff direction. Based on the feedback received, staff is recommending the following committees, but subject to change at the request of the City Council. The proposed committees are as follow: • Community Services Committee (and Joint Santa Ana Unified School District and City Council Committee) • Economic Development, Infrastructure and Technology Committee • Legislative Affairs, Ethics and Transparency Committee • Public Safety, Code Enforcement and Neighborhood Empowerment Committee It is also recommended by staff that the standing meetings convene quarterly with the understanding that additional special meetings may be scheduled and authorized pursuant to the Brown Act. Also, Mayor Pulido requested cost associated with staffing committee meetings. The approximate equivalent staff cost per meeting ranges between $1,400 - $2,000 per meeting. These costs include salaried and hourly staff, security guards, and translation services. 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 Staffing costs associated with said item are included in annual budget. 65A-2 RESOLUTION NO. 2017-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REPEALING RESOLUTION NO. 2013-020 AND ESTABLISHING CERTAIN COMMITTEES OF THE CITY COUNCIL BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: SECTION 1. The City Council hereby finds, determines and declares as follows: A. By resolutions approved in the past, the City Council had created as many as eight (8) Council Committees for the purpose of focusing greater Council attention on key priorities coming before the Council in the future. B. The City Council now seeks to reorganize the Council Committees by replacing the previous six (6) with five (5) Council Committees of the City Council, in order to improve efficiency and productivity of the committee process. SECTION 2. From and after the date hereof, there shall be the following Committees of the City Council: 1. Community Services Committee (and Joint Santa Ana Unified School District and City Council Committee) 2. Economic Development, Infrastructure and Technology Committee 3. Legislative Affairs, Ethics and Transparency Committee 4. Public Safety, Code Enforcement and Neighborhood Empowerment Committee Each committee shall consist of two (2) or three (3) Councilmembers. The members of the committees shall be appointed by a majority of the entire City Council at a public meeting. Committee members do not receive additional stipends or compensation for serving of these committees. Each committee member shall serve on the committee for a two year term commencing with the first meeting of each new City Council following a general election, but each Councilmember shall continue to serve on his or her committee until replaced. SECTION 3. This Resolution repeals and replaces all previous resolutions in their entirety relating to this subject matter. Resolution No. 2017-xxx 65A-3 Page 1 of 2 ADOPTED this day of February, 2017. Miguel A. Pulido Mayor APPROVED AS TO FORM: m Sonia R. Carvalho, City Attorney YES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. 2017-xxx to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Maria D. Huizar, Clerk of the Council Resolution No. 2017-xxx Page 2 of 2 65A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: THIRD AND BROADWAY PROPOSED DEVELOPMENT UPDATE AND COUNCIL AD HOC COMMITTEE RECOMMENDATION {STRATEGIC PLAN NO. 3, 5A} RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 0220� © As Recommended As Amended ® Ordinance on 1 of Reading ❑ Ordinance on 2nd Reading El Implementing Resolution M Set Public Hearing For CONTINUED TO FILE NUMBER 1. Discuss the Council Ad Hoc Committee Recommendation to enter into an Exclusive Negotiating and Reimbursement Agreement with Caribou Industries. 2. Direct staff to continue negotiations based upon the draft Disposition and Development Agreement proposed on July 5, 2016. 3. Direct staff to continue negotiations of a draft Disposition and Development Agreement based upon the Resolution proposed by Caribou Industries. DISCUSSION Background: On August 5, 2013 the City Council authorized the Community Development Agency to release a Request for Qualifications inviting development proposals for an innovative, high quality project at the Third and Broadway parking structure site (Exhibit 1-August 3, 2017 RFCA). On September 16, 2014 the City Council authorized the Planning and Building Agency to release a modified Request for Qualifications for the Third and Broadway parking structure site to include the Council's expressed desire for a hotel component. (Exhibit 2 — September 16, 2014 RFCA). On July 5, 2016 the City Council directed staff to pursue negotiations with Caribou Industries based upon a draft Disposition and Development Agreement (DDA) included with the RFCA (Exhibit 3-July 5, 2016 RFCA). Mayor Pulido appointed an ad hoc committee comprised of himself and Council Member Benavides to work with staff on negotiating a final DDA and developing a recommendation for the City Council's consideration. The Council Ad Hoc committee conducted several meetings to discuss details of the DDA and Caribou's alternative proposal. Caribou was not agreeable to the terms of the DDA and the Council ad hoc committee has asked staff to further research Caribou's proposal as set forth in a draft Resolution prepared by Caribou (Exhibit 4). 65D-1 Third and Broadway Proposed Development Update and Council Ad Hoc Committee Recommendation February 21, 2017 Page 2 As a first step in a major development project involving City -owned property, a city often enters into an Exclusive Negotiating Agreement (ENA). An ENA proposes a process whereby a city and a developer negotiate diligently and in good faith towards the goal of producing a mutually acceptable Disposition and Development Agreement ("DDA"). An ENA will include, among other terms, at least all of the following: • Schedule of Performance • Development Concept • Term • Parameters for Negotiations • Developer's Submission of Documents for City Review and Comment Staff also recommended to the Council Ad Hoc Committee that the City ask Caribou for a reimbursement agreement as the pursuit of complex development deals require significant staff time, economic analysis, environmental analysis and legal expertise. The proposed ENA will include a requirement that Caribou post a monetary deposit with the City and replenish the deposit as funds are expended in pursuit of reaching a final DDA. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objective #5 (Leverage private investment that results in tax base expansion and job creation citywide), Strategy A (Identify and market underutilized properties for new development that will create new jobs and expand the City's tax base). FISCAL IMPACT There is no immediate fiscal impact to the City in entering into an Exclusive Negotiation and Reimbursement Agreement. The reimbursement component of the proposed agreement will require the developer to post a deposit with the City to cover legal, consultant and planning costs associated with the continued research, negotiation and due diligence required to develop a Disposition and Development Agreement. Exhibits: 1. Request for Qualifications RFCA dated 8/5/13 2. Request for Qualifications RFCA dated 9/16/14 3. Request for Qualifications RFCA dated 7/15/16 4. Resolution draft 65D-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 5, 2013 TITLE: REQUEST FOR QUALIFICATIONS FOR DEVELOPMENT OF THE THIRD STREET AND BROADWAY PARKING STRUCTURE - 201 W. THIRD STREET 5 I CITY MANAGE RECOMMENDED ACTION Exhibit 1 CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 141 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO. FILE NUMBER Authorize the Community Development Agency to release a Request for Qualifications inviting qualified developers to submit Statements of Qualifications to develop an innovative, high quality project at the Third Street and Broadway parking structure site, designed to complement and enhance the unique characteristics of Downtown Santa Ana. DEVELOPMENT AND TRANSPORTATION COMMITTEE REVIEW The Development and Transportation Committee reviewed this matter at its meeting on June 4, 2013. The Committee suggested that the City solicit a broad array of concepts for this property, though it noted that certain uses, such as a hotel, could be desirable. The Committee has reviewed the RFQ and recommends that the City Council authorize staff to circulate it to interested parties. DISCUSSION The Third Street and Broadway parking structure is centrally located in Downtown Santa Ana, which is situated in the heart of Orange County (Exhibit 1). Downtown is a unique and vibrant area characterized by a mix of retail, restaurants, entertainment venues, artist lofts, and other uses catering to a broad customer base. Given the site's development potential and that the parking structure's design is now functionally obsolete, the property is being considered for redevelopment. The subject Request for Qualifications (RFQ) envisions replacing the parking structure with an innovative high quality project that reconnects Third and Fourth Streets, activates the ground floor space, incorporates public areas and art, and replaces the existing 440 parking spaces along with providing adequate parking for the new development. Potential uses for this site include: retail, restaurant, residential, hotel and/or office/commercial use. The RFQ is 65D-3 RFQ 3rd and Broadway Parking Structure August 5, 2013 Page 2 designed to encourage creativity by developers in proposing the optimum development scenario best suited to the Downtown and reflective of the needs of the community. The Third Street and Broadway parking structure was constructed in 1982 on a 62,243 square foot lot. The building area is approximately 146,055 square feet and consists of three levels that service both daily and monthly parking. The structure has reached a point of functional obsolescence due to its lack of vehicle and pedestrian mobility between Third and Fourth Streets, and lack of street level activity along its outer edges. Additionally, there are several items in need of repair or resolution including structural shoring, poor circulation, drainage issues, and obsolete parking equipment. Based on an initial evaluation conducted by City engineers, it is estimated that it would cost the City approximately $8.6 million to perform the necessary electrical, mechanical, drainage, and structural improvements along with parking control upgrades installation of security upgrades and wayfinding just to bring the parking structure to a baseline level of service. At the City Council Development (Land Use) and Transportation Committee meeting, staff presented the options of either making the estimated $8.6 million of repairs to the parking structure necessary to bring it to the baseline standard, or demolishing the structure and developing a project that includes replacement parking. The Committee members and staff agreed that the long-term benefits associated with demolition and redevelopment is the preferred option. The Committee members also concurred with staff that the development would need to incorporate adequate parking to replace the existing 440 spaces as well as any additional capacity necessary to support any new uses generated by the project. However, it was agreed that shared (reduced) parking could be considered if justified by a parking study. The recommended action authorizes the release of an RFQ for the development of the Third Street and Broadway parking structure site (Exhibit 2). The process will involve two steps: this issuance of the RFQ to identify qualified developers followed by the issuance of a Request for Proposals (RFP) to a short list of the top RFQ respondents. This process is designed to limit the initial costs and time burden on respondents in order to attract the interest and participation of the highest number of qualified developers as possible. The shortlisted developers would then be requested to submit full proposals to the City for an evaluation and selection process. This approach will ensure that the City and development community can most efficiently deliver the optimum development scenario for the site. Based on the anticipated schedule, qualifications will be due September 9, 2013, with the review process commencing immediately. Following the review of qualifications, recommendations will be made by staff and the Committee to the City Council regarding top candidates to invite to participate in submitting a full proposal. It is anticipated this list of top candidates will be brought to the Council for its consideration at its November 4, 2013 meeting. Depending upon the number of qualification packages received, the time frame may be adjusted. Attached is the RFQ distribution list which includes entities who have expressed interest in development in the City over the years, in addition to other organizations that can assist in outreach to their members (Exhibit 3). The RFQ will also be posted on the City's website. It is anticipated that the RFQ will be issued on August 6, 2013, subject to City Council approval. 65D-4 RFQ 3rd and Broadway Parking Structure August 5, 2013 Page 3 FISCAL IMPACT There is no fiscal impact associated with this action. �` ` �k Sandra D. Gottlieb Acting Executive Director Community Development Agency SDG1GPUkg Exhibit: 1. Map 2. Request for Qualifications 3. Distribution List J Trevino Executive Director Planning and Building Agency 65D-5 L; M REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2014 TITLE: REQUEST FOR QUALIFICATIONS FOR THE THIRD AND BROADWAY DEVELOPMENT PROJECT CITY MAINAGERfj RECOMMENDED ACTION Exhibit 2 CLERK OF COUNCIL USE ONLY: rat{i h ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2ntl Reading lI Implementing Resolution ❑ Set Public Nearing For CONTINUED TO FILE NUMBER Authorize the Planning and Building Agency to release a Request for Qualifications for the Third and Broadway Development Project. Staff is requesting authorization to release a Request for Qualifications (Exhibit 1) to experienced commercial and residential development firms regarding the opportunity to partner with the City to develop the property which currently contains the City -owned parking structure located at 201 West Third Street. The 1,43 acre site Is located at the corner of 3rd Street and Broadway and represents the largest developable parcel in the downtown with the greatest opportunity for development. Staff has received and incorporated feedback and recommendations on the content and form of the RFQ from a number of sources including the Development and Transportation. Committee, ULI Technical Assistance Panel, Dr. Richard Willson from Cal Poly Pomona, Kosmont Companies and the Planning Division's urban design consultant. STRATEGIC PLAN &IGNMENT Approval of this Item supports the City's efforts to meet Goal 43 Economic Development, Objective #5 (Leverage private investment that results in tax base expansion and job creation citywide), Strategy A (Identify and market underutilized properties (city and non -city owned) for new development that will create new jobs and expand the City's tax base (e.g. YMCA, 3rd and Broadway parking structure, Saddleback Inn site). FISCAL IMPACT There is no fiscal impact associated with this action. Karen Haluza Interim Executive Directo Planning and Building Agency MF: rb MF/ReportsRrCA's - P and 0roadway RFQ Release RFCA Exhibit: 1. Request for Qualifications 65D-7 JULY 5, 2018 TITLE: REOU98T FOR QUALIFICATIONS FOR THE THIRD STREETAND BROADWAY DEVELOPMENT PROJECT (STRATEGIC PLAN NO. 3, 5A) Exhibit 3 CLERK OF COUNCIL USE ONLY; As Recommended As Amended Ordinance on 1e1 Reading El Ordinance on 2n4 Reading Implementing Resolution Sat Public Hearing For^ CONTINUED TO FILE NUMBER Review and .select an option for the Third and Broadway Streets Development Project from the options listed below; Consider the .attached draft Disposition and Development Agreement (Sample Draft Disposition and Development.. Agreement) and provIdeL direction; 2. Direct staff to prepare a sample. Exclusive. Negotiation Agreement for consideration to be executed with a qualified developer; or 3, Direct the Planning and Building Agency to prepare a new Request for Qualifications, followed by a detailed request for Proposal process; or 4. Provide additional direction to staff on the development of the Third Street and Broadway Project. Can aeptenriber 16, 2014, the City Council directed the Planning and Building Agency to release a Request for Qualifications for the Third and Broadway Development Project, On September 18, 2014, the Planning and Building Agency issued a Request for Quallfioations outlining several components dealred by the City Cguncll, Among the components of the new project, there was an expressed desire to see a hotel/hospitailty component, Five proposals were received by staff, only one of whioh, the proposal presented by Caribou Industries, included a hotel component, Subsequently, staff presented the proposals to the Development and Transportation Committee of the City Council, recommending Oliver McMillan as the most qualified developer to develop the site.. However, at a later meeting, the Development and Transportation Committee directed staff L. W Third and Broadway development Project July 6, 22016 Page 2 to reach out to all of the development firma who had submitted proposals and give them a second chance to submit new proposals that would include a hotel components, even as a second phase of the project on the site or on a nearby property, Four of the original development firms resubmitted proposals. Caribou Industries included a hotel component. Of those four firms, the three other firms maintained their position that the hospitality market in (Downtown Santa tuna did not sufficiently support financing and construction of a new hotel and did not:include a hotel component In their new proposals, Subsequently, staff Identified the qualifying criteria for Caribou Industries to be selected as the developer for the Third and Broadway site, Part of the qualifying criteria were audited financial statements, a common criterion that allows City staff to assess the: developer's ability to complete and deliver the proposed project on 'time and on budget. After several requests, staff has not received the audited financial information required, Proposed Draft Disposition and Development Agreement (DDA,j Components: If the City Council opts to enter into a ODA with a qualified developer as drafted in the proposed sample D DA, the scope of the Third and Broadway Project will be as follows, but not limited to: 1. Developer Is to purchase the property at market value with the intention of demolishing the existing parking garage and building a mixed use residential/retall/office/hotel project, 2. The City shall Impose a lien on the property for the market value purchase of said property, Said lien shall be maintained for no less than 26 yearn. 3. The City shall release the lien after 25 years and upon the developer's accomplishment of all performance requirements and terms of the loam as outlined In the DDA. 4, The developer shall be required to deposit a determined amount within five (5) days of opening an escrow. 5, The transfer of the title of the property shall only take place after certain City of Santa conditions have been met by the developer. 6. The developer shall obtain all necessary, entitlements at their own expense prior to transfer of property titles from the City to the developer. 7. The developer shall prepare a complete environmental document consistent with California Environmental. Cuallty.Act (C QA) for the proposed project, 83 A minimum three ( )-star hotel component, consisting of no fewer than 60 rooms Is a required component of the proposed project, The hotel may be built at the same time as the rest of the projector In a subsequent phase, as described by the developer with a justification for Its phasing and timing. Developer must submit documentation to verify a commitment from It major hotel, development proforma for the hotel, and signed labor agreements as required but the City in order to most the hotel component requirement for the project, 65D-9 Third and Broadway Development Project Julys, 2016 Page 3 9� A hotel tax rebate incentive unay be negotiated between the. City and the hotel operator consistent with the City's Hotel Incentive Program, 10, The developer shall build the project paying prevailing wages and the hotel component shall employ unionized labor at prevailing wages for Its operations, 11, The developer will not be required to replace the existing public parking, Therefore, no public funds shall be directed to the development project for the purpose of creation of public parking. 12, The City and the developer will review and resolve all existing parking obligations associated with the exlsting municipal parking structure, 13. The City shall convey property Was immediately prior to a previously scheduled and fully authorized demolition of the existing improvements on the property, 14. The demolition of the existing Improvements and subsequent construction of the new project shall take place consistent with agreed upon terms and timelines set forth In the DDA. 15. Any unauthorized delays by the developer at any agreed upon phase of construction shall be subject to penalties set forth In the DDA. 16. The new development project shall be designed by a highly credible design team to exemplify the City's commitment to excellent design and sustainability in Santa Ana. 17. The City shall be responsible for removing all City parking equipment prior to commencement of demolition. 18, Prior to issuance of final certificates of occupancy, general, standard, and specific conditions and obligations set forth for this project shall be met within the timelines outlined in the DDA. 18, Developer is required to provide Community Outreach with all stakeholders to hear and address concerns over parking and construction during and after construction 20, The developer shell provide a Parking ivianagement Agreement. Part of that agreement will include provisions for the City to maintain and operate the parking structure until such time that the property musk be prepared for demolition, 21, Developer shall reconstruct Sycamore Street between 3rd Street and 0 Street for all modes of transportation at the developer's expense. The reconstruction of Syoamors Street shell be performed according to all zoning, open space, and public right-ofTway standards to the satisfaction of the Planning and Building and Public Works Agencies, 22. Existing street parking motor and parking activity must remain Intact, 23. Developer shall Improve the alley ,adjacent to the property according to specifications determined during the entitlement review process. 24. Developer shall remove the existing pedestrian bridges, 25. Developer shall provide ground floor, pedestrian -oriented commercial uses as will be detailed during the entitlement process. The developer shall meet specific performance milestones set forth In the DD& 28. The developer shall provide a detailed construction schedule, staging, and management plan to be reviewed and approved by the City to eliminate or mitigate Impacts to the surrounding businesses and the public during construction, 65D-10 Third and Broadway Development Project July 5, 2018 Page 4 27. Developer shall be fully responsible for securing and leasing staging locations at the developer's expense to the satisfaction of the City, The construction staging location and equipment shall not Impede day-to-day activities in surrounding areas, 2& The construction management and mitigation plan shall be disoussed and analyzed as park of the environmental review process prior to final approvals, The City Council has the following options; 1, Consider the attached draft Disposition and Development Agreement Sample Draft Disposition and Development Agreement) and provide direction; 2, Direct staff to prepare a sample Exclusive Negotiation Agreement for consideration to be exeouted with a qualified developer, or 3, .Direct the Planning and Building Agency to prepare a new Bequest for Qualifications, followed by a detailed Request for Proposal prom. s-; or 4. Provide additional direction to staff on the development of the Third Street and Broadway Project. Approval of this Item supports the City's efforts to meet foal #3 - Economic Development, Objective #5 (Leverage private investment that results in tax base expansion and job creation oitywids), Strategy A (identify and market underutillzed properties for now development that will create new jobs and expand the City's tax bass), FISCAL IMPACT There Is no fiscal Impact associated with this action.. A ti . r'�n�. e, HH;rb hMYoportOrd.&Orgadwaym dune 16, 201a Exhibit; 1. Sample Disposition and Development Agreement 65D-11 I FI CITY OF SANTA ANA DISPOSITION AND DEVELOPMENT AGREEMENT Downtown Hotel and Mixed -Use: Residential and Retail/Commercial Project At Third and Broadway This DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement' or "DDA") is entered into as of , 2016 (the "Effective Date"), by and between the CITY OF SANTA ANA, a California municipal corporation ("City"), and , a ("Developer"). RECITALS A. City is the fee owner of certain real property collectively consisting of approximately _ acres located at and approximately acres that constitutes a portion of the parcel located at as more particularly described in Attachment No. 3, attached hereto and incorporated herein by reference and depicted on the Map of the Project Site (collectively, the "City Property"). B. In 20 , Developer contacted City to express an interest in purchasing the City Property with the intent of redeveloping the City Property and the Developer Property with a mixed use hotel and commercial/retail project. C. City and Developer have negotiated terns pursuant to which Developer will purchase the City Property from the City for the development of an approximately _ room hotel and retail, restaurant and. caf6 space as more particularly described in the Scope of Development, attached hereto as Attachment No. 5 (the "Project'), which will be located on the City Property (the "Project Site"). The proposed Project will result in the redevelopment of imdenttilized land and aging structures, development of extended stay hotel rooms to accommodate a demand in Downtown Santa Ana and nearby to the Orange County Courthouse facility, increased employment opportunities within the City and additional property taxes, sales taxes and transient occupancy taxes produced from the Project Site. Additionally, Developer has agreed to pay the City the full fair market value for the purchase of the City Property, which will provide additional general fund revenue for the City. D. Based on the reasons identified in Recital C, above, together with the commitments and obligations of the Developer to develop the Project Site as contained in this Agreement, the City has determined that the sale of the Project Site to the Developer for development in accordance with this Agreement is in the best interest of the City. NOW THEREFORE, the Parties hereby agree as follows. Article 1 PURPOSE, PARTIES, AND PROJECT SITE 1.1 Recitals. The Recitals are hereby incorporated into this Agreement. EXHIBIT 1 55794.00000'29008220.1 65 D-12 1.2 Purpose. The purpose of this Agreement is to set forth the obligations of the Parties and the terms and conditions precedent for the purchase and sale of the City Property from the City to the Developer, and the design, development, construction and operation of the Project on the Project Site, The City has determined that the construction and operation of the Project by Developer within the City will stimulate direct and indirect economic activity within the City, will enhance the quality of life of residents and will provide substantial additional intangible benefits to the City. Further, Developer has agreed to pay fair market value for the City Property subject to the terms set forth in this Agreement. As such, the sale and development of the Project Site pursuant to this Agreement and the fulfillment generally of this Agreement are in the vital and best interests of the City, and the health, safety, morals and welfare of its residents and in accord with the public purposes and provisions of applicable federal, state and local laws and requirements. 1.3 Parties 1.3.1 The Citv. The City is the City of Santa Ana, a municipal corporation of the State of California. The principal office of the City is located at 20 Civic Center Plaza, Santa Ana, California. 1.3.2 The Developer. The Developer is a The principal address of the Developer is Whenever the term "Developer" is used herein, such term shall include any permitted nominee, assignee or successor in interest as herein provided. 1.3.2.1 The parties anticipate that a partnership or other entity (the "Partnership") may be formed by the Developer for the purposes of acquiring and developing the Site, or any portion thereof. In the event such a Partnership is formed, and provided that an entity owned or controlled by constitutes the sole general partner or managing member of the Partnership, it is the understanding and agreement of the parties that this Agreement may be assigned to and assumed by such Partnership; provided that such Partnership shall assume all the obligations of the Developer hereunder, in form and content satisfactory to the City 1.3.2.2 The qualifications and identity of the Developer are of particular concern to the City, and it is because of such qualifications and identity that the City has entered into this Agreement with the Developer. Except as otherwise provided in this Subsection 1.3.2, no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement, and the Developer shall not assign all or any part of this Agreement without the prior written approval of the City, which approval will be in the City's sole discretion exercised in good faith. This Agreement may be terminated by the City if there is any significant change (voluntary or invohrmary) in the management or control of the Developer without City's prior written approval, which approval will not be unreasonably withheld. Except as otherwise provided in this Agreement, for an approved assignment to be effective, the Developer and assignee shall enter into an assignment and assumption agreement in a form reasonably approved by the City. 5 5 3 94.00000\29008220.1 65 D-13 1.3.2.3 Notwithstanding the foregoing, the following assignments or transfers of this Agreement and the Project Site shall be permitted; 1.3.2.3.1 the sale or lease of commercial, restaurant or caf6 space to tenants or end - users, for occupancy upon completion; 1.3.2.3.2 an assignment as security for a construction and/or development loan from a lender, subject to the approval by City pursuant to this Agreement, which approval shall not be unreasonably withheld, conditioned, or delayed; 1.3.2,33 an assignment to a Partnership, as authorized above and in compliance with this Section 1.3.2; or 1.3.2.3.4 any other assignment or transfer after the issuance of a certificate of occupancy for the Project. 1.4 The Project Site. The Project Site is comprised of the City Property, as generally shown on the Map of the Project Site attached hereto as Attachment No, 1. Article 2 DEFINITIONS 2.1 Definitions. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 2.1.1 "City" and "Developer" shall have the definitions set forth in the Preamble, Recitals and Section 13. 2.1.2 "City Property" is defined in Recital A. 2.1.3 "Close of Escrow" is defined in Section 3.3.3. 2.1.4 "Damages" is defined in Section 3.12.3. 2.1.5 "Deposit' is defined in Section 3.2. 2.1.6 "Escrow Agent" is defined in Section 3.3. 2.1.7 "Feasibility Period" is defined in Section 3.2. 2.1.8 "Force Majeure" is defined in Section 6.3. 2.1.9 "Grant Deed" is defined in Section 3.3. 2.1.10 "Hazardous Materials" is defined in Section 3.12, 5. 55394.00000\29008220. 1 6 5 LJ _ 1.4 2.1.11 "Improvements" means the private improvements to be developed on the Project Site as part of the Project, as more fully described in the Scope of Development. 2.1.12 "Indemnitees" is defined in Section 3.12.3. 2.1.13 "Outside Date" is defined in Section 3.3.3. 2.1.14 "Partnership" is defined in Section 1.3.2.1. 2.1.15 "Preliminary Title Report" is defined in Section 3.6. 2.1.16 "Purchase Price" is defined in Section 3.1. 2.1.17 "Project" is the mixed use hotel and commercial, restaurant and caf6 improvements to be developed on the Project Site, as more fully described in the Scope of Development, attached hereto and incorporated into this Agreement as Attachment No. 5. 2.1.18 "Project Site" shall have the definition set forth in Recital C and Section 1.4, 2.1.19 Intentionally Blank 2.1.20 "Schedule of Performance" means the schedule attached hereto and incorporated into this Agreement as Attachment No. 4. 2.1.21 "Title Company" is defined in Section 3.9. Article 3 (DISPOSITION OF TI3E PROJECT SITE 3.1 Purchase and Sale of the Project Site. The City agrees to sell to the Developer, and Developer agrees to purchase from the City, the City Property, within the time set forth in the Schedule of Performance. The purchase price for the City Property collectively shall be DOLLARS ($ .00) (the "Purchase Price"). The Purchase Price constitutes the full fair market value of the City Property as determined pursuant to that certain appraisal of the City Property dated , 2016 conducted by and dated The City shall impose a lien on the property for the market value purchase of said property, Said lien shall be maintained for no less than 25 years. The City shall release the lien after 25 years and upon the developer's accomplishment of all performance requirements and terms of the loan as outlined, in the DDA. The Developer and City both acknowledge and understand that the City is selling the City Property to Developer at market value with the intention of demolishing the existing parking 5 5 394.00000\29008220. 1 6 5 D -1 5 garage and building a mixed use residential/retait/office/hotel project, and not for speculation in undeveloped land. 3.2 Deposit. Within five (5) days of the opening of the Escrow as set forth in Section 3.3 of this Agreement, Developer shall deposit Thousand Dollars ($ into an interest bearing escrow account with the Escrow Agent (the "Deposit"). The Deposit shall be fully refundable for 90 days following the Effective Date of this Agreement as set forth in the introductory paragraph herein, during which period Developer shall have the opportunity to determine the suitability of the Property for Developer's intended use in its sole and absolute discretion (the "Feasibility Period"). In the event that Developer determines prior to the expiration of the Feasibility Period that it does not desire to proceed with the Project, Developer may terminate this Agreement pursuant to Section 5.6 of this Agreement and the Deposit and all interest accrued shall be refunded to Developer in its entirety. If Developer does not terminate this Agreement prior to the end of the Feasibility Period, except as expressly set forth in Section 5.5, the Deposit shall become non-refundable in the event of termination of this Agreement by Developer as provided in Section 5.6 or based on Developer's default as provided in Section 5.7, the Deposit shall be retained by City as liquidated damages as more specifically described in Section 5.7 of this Agreement. DEVELOPER WILL PAY ALL FEES AND COSTS. 3.3 Escrow. The City agrees to open an escrow account with Title Company, located at , Santa Ana, CA. or any other escrow company approved by the City and the Developer, as escrow agent ("Escrow Agent") within the time established in the Schedule of Performance, attached hereto as Attachment No. 4. 3.3.1 This Agreement constitutes the joint escrow instructions of the City and Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agency upon the opening of escrow. The City and the Developer shall provide such additional escrow instructions as shall be necessary and consistent with this Agreement. The Escrow Agency hereby is empowered to act under this Agreement and, upon indicating its acceptance of the provisions of this Section 3.3 in writing, delivered to the City and to the Developer within five (5) days after the opening of the escrow, shall carry out its duties as Escrow Agency hereunder, 3.3.2 The City shall timely and properly execute, acknowledge and deliver to the Escrow Agent a grant deed (the "Grant Deed"), in the form attached hereto as Attachment No. 6, conveying to the Developer fee title to the City Property, subject to certain conditions as set forth therein, in accordance with the requirements of Section 3.5 of this Agreement. 3.3.3 [Intentionally Left Blank] 3.3.4 The Developer shall pay into escrow to the Escrow Agent the following fees, charges, and costs promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges, and costs, but not later than five (5) business days after opening an escrow: 3.3.4.1 The escrow and recording fees; 55394M000\29008220.1. 65 D-16 3.3.4.2 The premiums for title insurance attributable to a CLTA standard form policy, to be paid by the City as set forth in Section 3.9 of this Agreement hereof; 3.3.4.3 Any increase in title insurance premiums attributable to an ALTA title insurance policy, and for all special endorsements, if and as requested by the Developer as set forth in Section 3.9, below. 3,3.4.4 Costs necessary to place the title to the City Property in the condition for conveyance required by the provisions of this Agreement; 3.3.4.5 Recording fees; 3.3.4.6 Notary fees; 3.3.4.7 Any state, county, or city documentary transfer tax, and 3.3.4.9 Ad valorem taxes, if any, upon the City Property for any time prior to conveyance of the City Property interest to Developer. 3.3.5 Upon receiving a written certification from both the City and the Developer that the conditions for conveyance to the Developer of the City Property have either been satisfied or waived and instructing the Escrow Agent to close escrow, and upon delivery of the Grant Deed and funds pursuant to Section 3.7 of this Agreement, the Escrow Agent shall record the Grant Deed in accordance with the terms and provisions of this Agreement (the "Close of Escrow"). The Close of Escrow shall occur not later than 20 (the "Outside Date"). The Escrow Agent is further authorized to; 3.3.5.1 Pay and charge the Developer for any fees, charges, or costs payable pursuant to this Agreement. Before such payments are made, the Escrow Agent shall notify the City and the Developer of the fees, charges, and costs necessary to clear title and close the escrow; 3.3.5.2 Disburse funds and deliver any documents to the parties entitled thereto when the conditions of this escrow have been fulfilled by the City and Developer; and 3.3.5.3 Record the Grant Deed and any other instruments delivered through escrow, if necessary or proper, to vest fee title in the Developer in accordance with the terms and provisions of this Agreement, and pay any transfer tax from the escrow funds required by law. 3.3.6 All funds deposited with the Escrow Agent shall be delivered by wire transfer or other certified immediately available funds, and shall be deposited by the Escrow Agent with other escrow funds of the Escrow Agent in a general escrow account or accounts with any state or national bank doing business in the State of California. Such finds may be transferred to any other general escrow account or accounts. All disbursements shall be made by check of the Escrow Agent, or by wire transfer if authorized by the Parties. 55394.00000\29008220.1 65 D-17 3.3.7 In addition to the rights of the parties set forth in Article 5, if the escrow is not in condition to close before the outside date for conveyance as set forth in the Schedule of Performance, then either party who then shall have fully performed their respective obligations set forth in this Agreement may, in writing, terminate this Agreement as set forth in Sections 5,5 or 5.6 hereof, as the case may be, and demand the return of its money, papers or documents. Thereupon all obligations and liabilities of the Parties under this Agreement shall terminate in the manner set forth in Section 5.5 or 5,6 hereof, as the case may be, except any provisions which specifically provide for survival shall survive such termination and remain in full force and effect, If neither party shall have fully performed the acts to be performed before the time for conveyance set forth in the Schedule of Performance, no termination or demand for return shall be recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand to the other party or parties at the address of its or their principal place or places of business. If any objections are raised within the ten (10) day period, the Escrow Agent is authorized to hold all money, papers and documents with respect to the City Property until instructed in writing by both the City and the Developer or upon failure thereof by a court of competent jurisdiction.. If no such demands are made, the escrow shall be closed as soon as possible. Nothing in this Section 3.3.5 shall be construed to impair or affect the rights or obligations of the City or the Developer to specific performance. 3.3.8 Any amendment of these escrow instructions shall be in writing and signed by both the City and the Developer. At the time of any amendment, the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. 3.4 Conveyance of Title and Delivery of Possession. Provided that Developer is not in default tinder this Agreement and all conditions precedent to such conveyance have occurred, and subject to any mutually agreed upon extensions of time, conveyance to the Developer of fee title to the City Property shall be completed on or prior to the date specified in the Schedule of Performance, or any extension of such time as may be mutually agreed to by the parties. Possession shall be delivered to the Developer concurrently with the conveyance of the City Property. The Developer shall accept its fee title and possession on or before said date. 3.5 Conditions Precedent to Conveyance. Close of escrow and conveyance of the City Property to the Developer shall be contingent upon satisfaction (or waiver by the party benefiting from such condition) of the following conditions precedent; 3.5.1 For Benefit of Developer; 3.5.1.1 Before the Close of Escrow, City shall not be in default in any of its obligations under the terns of this Agreement and all representations and warranties of City contained herein shall be true and correct in all material respects. 3.5,1,2 Developer shall have reviewed and approved the condition of title of the City Property, as provided in Section 3.6 hereof. 3.5.1.3 Developer shall have reviewed and approved the environmental condition of the Site. 55394.00000\29008220.1 6 5 D -1 8 3.5.1.4 City shall have executed and delivered the Grant Deed to the Escrow Agent. 3.5.1.5 City shall have executed and delivered the Reciprocal Easement Agreement to the Escrow Agent. 3.5.1.6 Developer has received all City approvals required for the development of the Project, including all required discretionary entitlements, design review, and approval of Developer's construction plans and drawings for the Project and all appeal periods for such approvals have expired; 3.5.1.7 The Title Company shall be ready, willing, and able to issue the Title Policy to Developer at the Close of Escrow, subject only to the permitted exceptions described in Section 3.6.2; and 3.5.2 For Benefit of City: 3.5.2.1 Before the Close of Escrow, Developer shall not be in default in any of its obligations under the teens of this Agreement and all representations and warranties of Developer contained herein shall be true and correct in all material respects. 3.5.2.2 Developer shall have reviewed and approved the condition of title of the City Property, as provided in Section 3.6 hereof. 3.5.2.3 Developer shall have reviewed and approved the environmental condition of the Project Site, as provided in Section 3.12 hereof. 3.5.2.4 Developer shall have executed and delivered the Reciprocal Easement Agreement to the Escrow Agent; 3.5.2.5 Developer shall have delivered the Purchase Price to the Escrow Agent; 3.5.2.E Developer shall have paid into escrow all fees and costs associated with the transaction; 3.5.2.7 Developer's final construction plans and drawings for the Project have been approved by the City, pursuant to Section 4.4; 3.5.2.8 The Developer shall prepare a complete environmental documents consistent with the California Environmental Quality Act (CEQA) for the proposed project. The construction management and mitigation plan shall be discussed and analyzed as part of the environmental review process prior to final approvals. 5 5 3 94. 00000\29008220. 1 A 5 D_ 1 w 3.5.2.9 Developer has received all City approvals and necessary entitlements required for the development of the Hotel Project, at its own expense, including all required discretionary entitlements, design review, and all appeal periods for such approvals have expired; 3.5.2.10 Developer has provided evidence, satisfactory to City in its sole and discretion exercised in good faith, that Developer has sufficient and binding financing commitments to complete the Project; 3.5.2.11 Developer has an executed construction contract for the Project with its general contractor; 3.5.2.12 Developer has delivered to the City proof of insurance, in compliance with Section 4.6 hereof; 3.5.2.13 Developer shall have obtained the commitments and approvals necessary to develop and operate the hotel component of the Project as a minimum three (3) star on the Project Site. 3.6 Conditions of Title. Within 30 days following execution of this Agreement, the City will submit to the Developer for review and approval a preliminary title report for the City Property, together with a copy of all underlying documents referred to therein ("Preliminary Title Report"), and will further provide an updated preliminary report at such time that the City takes fee title to the Successor Agency Parcels, and thereafter from time to time upon reasonable request of the Developer. The Developer shall approve or disapprove the Preliminary Title Report within the time established in the Schedule of Performance, Failure by the Developer to approve within such time shall be deemed disapproval. 3.6.1 The Developer shall be responsible for any costs and expenses necessary to place title to the City Property in the condition for conveyance of fee title to the City Property to the Developer as required hereunder. If the Developer disapproves any title exception reflected in the Preliminary Title Report (or any updated preliminary report), and the City, within ten (10) days thereafter gives Developer written notice that the City elects not to remove such exception, the Developer may elect, within ten (10) days of receipt of the City's notice, to accept fee title to the Project Site subject to such exception or to terminate this Agreement by providing written notice thereof to the City. Notwithstanding the foregoing, City shall, without the requirement of Developer to object or City to refuse, remove all monetary liens (other than property taxes or assessments for amounts not yet delinquent) from the title to the City Property delivered to Developer at Close of Escrow, and shall remove from title or otherwise satisfy all exceptions it otherwise agrees to remove, in a form that is reasonably satisfactory to Developer prior to the Closing Date. 3.62 The City shall convey to the Developer fee interest in the City Property free and clear of all recorded liens, encumbrances, assessments, leases and taxes, except easements of record and encumbrances that are consistent with this Agreement or approved in writing by the Developer. 553 94.00000\29008220. 1 6 5 D -2 0 3.7 Time for and Place of Delivery of Grant Deed. Subject to any mutually agreed upon extensions of time, the City shall deposit the Grant Deed for the City Property with the Escrow Agent on or before the date established in the Schedule of Performance for the conveyance of fee title to the City Property to Developer. Developer shall deposit the Purchase Price and all sums required hereunder with the Escrow Agent prior to the date for conveyance thereof, provided that the Escrow Agent shall have notified the Developer in writing that the Grant Deed, properly executed and acknowledged by the City, has been delivered to the Escrow Agent and that title is in condition to be conveyed in conformity with the provisions of Section 3.4 of this Agreement. 3.8 Recordation of Grant Deed and Reciprocal Easement A reg ement. Upon close of escrow, the Escrow Agent shall record the Grant Deed, and subsequently record the Reciprocal Easement Agreement, in the land records of the Office of the County Recorder of Orange County, and shall deliver to the Developer, with a copy to the City, the title insurance policy insuring fee title to the City Property, in conformity with this Agreement. 3.9 Title Insurance. Conciurently with recordation of the Grant Deed, Title Company or another title insurance company satisfactory to the City and the Developer having equal or greater financial responsibility ("Title Company"), shall provide and deliver to the Developer a title insurance policy issued by the Title Company insuring that title to the City Property is vested in the Developer in the condition required by this Agreement, and shall provide the City with a copy of the title insurance policy. The face amount of the title policy shall be shall be equal to the Purchase Price. 3.9.1 The Developer shall pay for the title insurance premium attributable to a CLTA standard fonn policy of title insurance for the City Property. The Title Company shall, if requested by the Developer, provide the Developer with an endorsement to insure the amount of the Developer's estimated development costs of the improvements to be constructed upon the Project Site. The Developer shall pay the entire premium for any increase in coverage and special endorsements, including extended ALTA coverage, if any, that may be requested by it. 3.10 Delivery of Possession. The City Property shall be conveyed to Developer free of any possession or right of possession by any person, 3.11 Payment of Taxes. All general and special real property taxes, bonds and assessments, if any, on the City Property, and taxes upon this Agreement or any rights hereunder, levied, assessed or imposed for any period commencing prior to the close of escrow for the sale of the City Property to Developer shall be borne by the City. All general and special real property taxes, bonds and assessments levied or imposed for any period commencing after close of escrow for sale of the City Property to Developer shall be paid by the Developer. 3.12 Inspections and Conditions of the Project Site. 3.12.1 Inspections. Within the time established in the Schedule of Performance, the Developer shall, at its sole cost, conduct any additional investigation of the City Property, its physical condition, the soils and toxic conditions of the City Property and all other matters which in the Developer's sole and absolute judgment affect or influence the Developer's proposed use 5 53 94.00000\29008220,1 65 D-21- of the City Property and the Developer's willingness to develop the City Property pursuant to this Agreement. The Developer's investigation may include, without limitation, the preparation by a duly licensed soils engineer of a Phase One environmental assessment for the City Property, Within the time set forth in the Schedule of Performance, the Developer shall provide written notice to the City of the Developer's determinations concerning the suitability of the physical condition of the City Property. If, in the Developer's reasonable judgment, the physical condition of the City Property is iuisuitable for the use or uses to which the City Property will be put, then the Developer in Developer's sole and absolute judgment shall have the option either; (a) to take any action necessary to place the City Property in a condition suitable for development, at no cost to the City; or (b) to terminate this Agreement by delivering written notice thereof to the City. If the Developer has not notified the City of its determinations concerning the suitability of the physical condition of the City Property within the time set forth in the Schedule of Performance (or any extension of such time mutually agreed to by the parties), the City shall have the right to terminate this Agreement pursuant to Section 5.6 hereof. 3.12.2 "As -Is". In addition to the environmental assessments referenced above, the City shall deliver to the Developer all other information of which it has actual knowledge concerning the physical condition of the City Property, including, without limitation, information about any Hazardous Materials. The Developer acknowledges that the City Property is being acquired "as is", in its current physical condition, with no warranties, express or implied, as to the physical condition thereof, the presence or absence of any latent or patent condition thereon or therein, including, without limitation, any Hazardous Materials thereon or therein, and other matters affecting the City Property. 3.12.3 Indemnity. The Developer agrees, from and after the date of recording of the Grant Deed conveying fee interest in the Project Site to the Developer under this Agreement, to defend, indemnify, protect and hold harmless the City and its officers, beneficiaries, employees, agents, attorneys, representatives, legal successors and assigns ("Indemnitees") from, regarding and against any and all liabilities, obligations, orders, decrees, judgments, liens, demands, actions, claims, losses, damages, fines, penalties, expenses, or costs of any kind of nature whatsoever, together with fees (including, without limitation, reasonable attorneys' fees and experts' and consultants' fees) ("Damages") whenever arising, not caused in whole or in part by the City resulting from or in connection with the actual or claimed generation, storage, handling, transportation, use, presence, placement, migration, and/or release of Hazardous Materials (as defined herein), at, on, in, beneath, or from the City Property, except if such Damages (a) resulted from fraud, negligence, misrepresentation, or failure to disclose by the Indemnitees, or (b) were caused in whole or in part by the Indemnitees. The Developer's defense, indemnification, protection and hold harmless obligations herein shall include, without limitation, the duty to respond to any governmental inquiry, investigation, claim or demand regarding the any Hazardous Materials condition, at the Developer's sole cost. 3.12.4 Release and Waiver. The Developer hereby releases and waives all rights, causes of action and claims the Developer has or may have in the future against the Indemnitees arising out of or in connection with any Hazardous Materials (as defined herein), at, on, in, beneath or from the City Property, except if such cause of action arises from the negligent or fraudulent misrepresentation or failure to disclose by the City relating to a representation or warranty of City which is false or misleading. 55394,00000\29008220.1 6 5 D -2 L 3,12.5 Hazardous Materials Defined. As used in this Agreement, the term "Hazardous Materials" means any substance, material or waste that is (1) defined as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," or "restricted hazardous waste" under any provision of California law; (2) petroleum; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317); (7) defined as a "hazardous substance" pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 or seq. (42 U.S.C. Section 6903) or its implementing regulations; (8) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601); or (9) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property, 3.12.6 Materiality. The Developer acknowledges and agrees that the defense, indemnification, protection and hold harmless obligations of the Developer for the benefit of the City set forth in this Agreement are a material element of the consideration to the City for the performance of its obligations under this Agreement, and that the City would not have entered into this Agreement unless the Developer's obligations were as provided herein. 3.13 Preliminary Work and Right of Entry, Prior to the conveyance of fee interest in the City Property to the Developer, representatives of the Developer shall have the right of access to the City Property at all reasonable times for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement. The City may require the Developer to execute a commercially reasonable right of entry agreement satisfactory to the City prior to entry onto the City Property for such purpose. The Developer's inspections, examination, testing, survey and review of the City Property shall be at the Developer's sole cost and expense, The developer shall obtain the City's consent in writing prior to any proposed physical testing of the City Property, which consent shall not be unreasonably conditioned, withheld or delayed. The Developer shall repair, restore and return the City Property to its original condition after such physical testing, at Developer's sole cost and expense, provided that Developer shall have no obligation to remediate Hazardous Materials discovered during such testing. The Developer shall schedule any such inspections during normal business hours unless otherwise approved by the City. During this inspection period, the Developer shall at all times keep the City Property free and clear of any liens and encumbrances created by Developer. 3.14 City Property Data and Information, The City shall make all data and information pertaining to the City Property available to the Developer. The City makes no warranty or representations, however, as to the completeness, correctness, or validity of such data and information. Copies of final data, surveys, and tests obtained or made by the Developer on the City Property shall be filed with the City. Any preliminary work by the Developer shall be undertaken only after securing any necessary permits for such preliminary work from the appropriate governmental agencies. 55394,00000\29008220.1 65 D-23 3.15 Indemnity for Entry on City Propertx Without limiting any other indemnity provisions set forth in this Agreement, the Developer shall indemnify, defend (with counsel approved by the City) and hold the City and its elected and appointed officers, officials, employees, contractors, agents and representatives harmless from and against all injury, damages, liability, loss, cost, claim, demand, action, suit, legal or administrative proceeding, penalty, deficiency, fine, or other expense resulting from or arising in connection with entry upon the City Property by the Developer or Developer's representatives or agents pursuant to this Agreement, except to the extent caused by pre-existing conditions (such as Hazardous Materials) or the negligence or willful misconduct of City. The Developer's indemnification obligations set forth in this Section 3.15 shall survive the close of escrow and termination of this Agreement. Prior to Developer's entry upon the City Property, the Developer shall provide the City with a certificate or other proof of insurance meeting the requirements set forth in this Agreement. 3,16 Submission of Evidence of Equity Capital and Mortgage Financing. If the Developer finances the development of the Project and related, activities, all such financing (construction and permanent) shall be subject to the approval of the City, which approval will not be unreasonably withheld, conditioned, or delayed. No later than the time specified in the Schedule of Performance, the Developer shall submit to the City evidence satisfactory to the City that the Developer has the equity capital and commitments for financing necessary for development of the Project. The City shall approve or disapprove such evidence of financing commitments within the time established in the Schedule of Performance. Article 4 DEVELOPMENT OF THE PROJECT SITE 4.1 Reparcelization of the Project Site. Prior to conveyance of the City Property, the Developer shall, at the Developer's sole cost and expense, take all actions necessary to obtain approval from the City of a parcel map, lot line adjustment or other actions, as required by the City, to reparcelize the Project Site to create one or more legal parcels to enable development of the Project, with the resulting parcel map, lot line adjustment or other instrument used to reparcelize the Site to be recorded concurrent with the conveyance of the City Property, [MAY NOT BE NECESSARY] 4.2 Scope of Development. The Developer shall develop the Project on the Project Site, as provided in the Scope of Development, all in accordance with plans approved by the City, including the following: 4.2.1 A minimum three (3)-star hotel component, consisting of no fewer than 60 rooms is a required component of the proposed project. The hotel may be built at the same time as the rest of the project or in a subsequent phase, as described by the developer with a justification for its phasing and timing. Developer must submit documentation to verify a commitment from a major hotel, development proforma for the hotel, and signed labor agreements as required but the City in order to meet the hotel component requirement for the project. 4.2.2 Developer shall reconstruct Sycamore Street between 3rd Street and 4th Street for all modes of transportation at the developer's expense. The reconstruction of Sycamore Street 55394.00000\29008220.1 65 D-24 shall be performed according to all zoning, open space, and public right-of-way standards to the satisfaction of the Planning and Building and Public Works Agencies, 4.2.3 Developer shall improve the alley adjacent to the property according to specifications determined during the entitlement review process. 4.2.4 Developer shall remove the existing pedestrian bridges. 4.3 Covenant to Operate Retail Uses on Ground Floor, The Developer hereby covenants that the ground floor of the Project as described in the Scope of Development shall be used exclusively for pedestrian oriented commercial uses, and no other use shall be permitted without the written consent of the City. This covenant shall be incorporated into the Grant Deed conveying the City Property from the City to Developer. 4.4 Development Review. Within the times established in the Schedule of Performance, the Developer shall submit to the City for review and approval all construction plans, drawings and related documents for the construction and development work to be done on the City Property. The new development project shall be designed by a highly credible design team to exemplify the City's commitment to excellent design and sustainability in Santa Ana, including earthquake/seismic standards. Final construction plans and drawings are defined as those in sufficient detail to obtain a building permit. 4.4.1 The Developer shall obtain all approvals and permits that may be required under the City's normal plan check, development review and approval process for the construction and development work to be completed on the City Property, or applicable portion thereof, and shall pay all fees and costs associated with such review consistent with the City's normal entitlement process. The Project, and all plans, drawings and related documents for the development of the City Property, shall be consistent with the City's General Plan and Zoning Code. During the preparation of any drawings and plans for the development and construction work to be completed on the City Property, the Developer shall meet with City staff and communicate and consult informally and as frequently as is necessary to ensure that the formal submittal of any documents to the City pursuant to this Section 4.4 can receive prompt consideration. 4.4.2 The City shall approve or disapprove the plans, drawings and related documents submitted pursuant to this Section 4.4 in accordance with City's normal plan check procedures. Any disapproval shall state in writing the reasons for disapproval and the changes that the City requests be made. Such reasons and such changes must be consistent with the Scope of Development and any items previously approved hereunder by the City. The Developer, upon receipt of a disapproval, shall revise such plans, drawings and related documents and resubmit them to the City as soon as possible after receipt of the notice of disapproval, provided, that in no case shall the City be entitled to require changes inconsistent with the Scope of Development and any previously approved items, 4.4.3 If the Developer desires to make any material change in the construction plans after their approval by the City, the Developer shall submit the proposed change to the City for its approval. If the construction plans, as modified by the proposed change, conform to the 5 5394,00000\29008220. 1 65 D-2 5 requirements of this Section 4.4, and other approvals previously granted by the City under this Agreement and the Scope of Development, the City shall approve the proposed change and notify the Developer in writing within thirty (30) days after submission to the City. 4.4.4 Based on the development and preliminary plans provided by Developer for the Project under this Agreement, City staff has made an initial determination that the development of the Hotel Project may have significant environmental impacts requiring the preparation of an Environmental Impact Report. 4.5 Schedule of Performance. The Developer shall provide a detailed construction schedule, staging, and management plan to be reviewed and approved by the City to eliminate or mitigate impacts to the surrounding businesses and the public during construction. The Developer agrees to perform and advance development of the Project consistent with the Schedule of Performance attached hereto as Attachment No. 4. The Schedule of Performance is subject to revision as mutually agreed upon in writing between the Developer and the City pursuant to this Agreement. The City Manager shall have the authority to approve in writing, on behalf of the City, any such extensions of time he or she deems reasonable and appropriate, in accordance with the requirements of this Agreement. 4.5.1 The City shall convey property titles immediately prior to a previously scheduled and fully authorized demolition of the existing improvements on the property. 4.5.2 The demolition of the existing improvements and subsequent construction of the new project shall take place consistent with agreed upon terms and timelines set forth in the DDA. 4.6 Bodily Injury and Property Damage Insurance. Prior to the commencement of any work on the Project Site, including any preliminary work performed by the Developer pursuant to Section 3.13, the Developer shall furnish, or cause to be furnished to the City duplicate originals or appropriate certificates of insurance evidencing commercial general liability insurance on an occurrence basis instuing against bodily injury and property damage in a combined single limit of liability per occurrence in the amount of ONE MILLION DOLLARS ($1,000,000), general aggregate limit of TWO MILLION DOLLARS ($2,000,000) and builder's all risk insurance in an amount not less than the Rill insurable value of the improvements on the Site on a replacement cost basis, together with endorsements naming the City, and its elected and appointed officers, officials, employees, contractors, agents and representatives, as additional insureds. Developer shall further provide evidence of automobile liability insurance on an occurrence basis for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than TWO MILLION DOLLARS ($2,000,000) per occurrence, covering owned, non -owned and hired automobiles. Developer shall also provide evidence of worker's compensation insurance in the statutory amount required by law. Developer's contractor, and subcontractors if any, shall also submit evidence of liability insurance in the same form and amount as required by Developer. 4.6.1 The certificates of insurance shall be accompanied by all appropriate endorsements, and shall set forth the names of the insurance carriers, the policy numbers, the 5 5 3 94,00000\29008220, 1 6 5 D -2 6 coverage limits, any applicable deductible or retention, and the policy effective and expiration dates. The certificates of insurance shall also evidence that: (a) Developer has procured and paid for the foregoing insurance coverage from companies either (i) having an A.M. Best rating of "A VTI" or higher or (ii) otherwise acceptable to City in its sole discretion; (b) the person executing the insurance certificates is authorized by the applicable insurance carriers to do so; and (c) all insurance coverages required to be maintained by Developer pursuant to this Section 4.6 provide coverage on an "occurrence" basis and not on a "claims made" basis. The insurance certificates shall state that the insurer will provide Agency with thirty (30) days written notice in case of cancellation or non -renewal. 4.6.2 The insurance policies required by this Section 4.6 shall be endorsed by Developer's insurance carriers to reflect (a) that the coverages provided pursuant to the policies required by this Section 4.6, including any excess or umbrella policies, are primary over any other insurance coverage that may be available to City, and (b) that any other insurance coverage that may be available to City shall be excess over the coverages provided by the policies required by this Section 4.6, including any excess or umbrella policies, and (c) that the coverages provided pursuant to the policies required by this Section 4.6, including any excess or umbrella policies, shall not require contribution of any other insurance coverage that may be available to City, regardless of how such other insurance coverage of City is structured to apply in other insurance situations. Further, all policies, including excess or umbrella policies, shall provide coverage for claims by one insured against another insured and the policies shall not contain any cross -suits exclusions, cross -liability exclusions, or insured versus insured exclusions. 4.6.3 In addition to the insurance requirement of this Section 4.6, the Developer agrees to and shall indemnify, protect, defend and hold the City, its elected and appointed officers, directors, employees, agents and representatives, harmless from and against all liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or to the property of any person which shall occur on or adjacent to the City Property, or applicable portion thereof, and which is not caused by the act or negligence of the City, or its officers, agents, servants, employees or contractors. 4.7 Cif and Other Governmental Agency Permits. Prior to the commencement of any construction and development (or any work related thereto) upon the City Property, the Developer shall, at its own expense, secure, or cause to be secured, any and all approvals and permits which may be required by the City or any other governmental agency affected by such construction. All site work and construction activities shall be undertaken in accordance with the requirements of the City, and other applicable local, regional, state and federal rules, regulations and standards, including but not limited to: City building permit; grading permit; approved development plans; design review, and conditions specified in City conditional use permit. The Developer agrees to defend, indemnify, protect and hold harmless the City and its officers, employees, and agents from, regarding and against any and all liabilities, obligations, orders, claims, damages, fines, penalties and expenses of any kind whatsoever, together with fees (including, without limitation, reasonable attorneys' fees), whenever arising, resulting from or in 55394,00000\29008220.1 65 D-27 connection with the obligation to comply with all laws with respect to the construction of the Project, including, without limitation, all applicable federal and state labor laws and standards, 4.8 Rights. of Access during Construction. For the purposes of assuring compliance with this Agreement, representatives of the City shall have the reasonable right of access to the City Property without charges or fees, at normal construction hours during the period of construction and development for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing and developing the improvements. Nothing contained in this Section 4.8 shall be, or be deemed to be, a limitation of the rights of the City, tinder its regulatory authority, to access the City Property and inspect the City Property or the improvements being constructed thereon. 4.9 Anti -Discrimination. The Developer, for itself and its successors and assigns, agrees that in the construction and development of improvements on the Project Site as provided for in this Agreement, the Developer will not discriminate against any employee or applicant for employment on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, 4.10 Certificate of Cornnletion. Upon the completion of the construction and development of any portion of the Project, the Developer shall send a written request to the City and the City shall furnish the Developer with a Certificate of Completion for such work, in a form suitable for recording in the Official Records of Orange County, California. A Certificate of Completion is not a Certificate of Occupancy as may be issued by the City. The Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction and development work to be completed on that portion of City Property, as required by this Agreement. The City shall not unreasonably withhold the Certificate of Completion. If the City refuses or fails to furnish a Certificate of Completion for any portion of the City Property after written request from the Developer, the City shall provide the Developer with a written statement of the reasons the City refused or failed to furnish a Certificate of Completion, The statement shall also contain the City's opinion of the action the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate unavailability of specific items or materials for landscaping or monuments not a part of a structure, the City may issue its Certificate of Completion upon the posting of a bond by the Developer in an amount representing a fair value of the work not yet completed. After recording of a Certificate of Completion, any party then owning or thereafter leasing, subleasing, or otherwise acquiring any interest in that portion of the City Property covered by a Certificate of Completion shall not (because of such lease, sublease or acquisition) incur any obligation or liability under this Agreement. A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation by the Developer to any holder of a mortgage or any insurer of a mortgage 55394.00000\29008220.1 65 D-28 securing money loaned to finance the improvements or any part thereof. A Certificate of Completion is not notice of completion as referred to in California Civil Code Section 3093. Prior to issuance of final certificates of occupancy, general, standard, and specific conditions and obligations set forth for this project shall be met within the timelines outlined in the DDA. 4.11 Records. The Developer shall maintain in accordance with generally accepted accounting principles, complete books and records relating to the construction, and development of the Project. Upon request for examination by the City, the Developer during all normal business hours, shall make available all of its records with respect to all matters covered by this Agreement. Developer shall permit the City to audit, examine and make excerpts or transcripts from these records. 4.12 Prevailing Wages. The parties contemplate that the construction of the Project pursuant to this Agreement will be subject to the payment of prevailing wages under Labor Code Section 1720, et seq. Accordingly, the Developer shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure of Developer or its contractors to pay prevailing wages if and to the extent required by law or to comply with the other applicable provisions of Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations in connection with construction of the Project. The foregoing indemnity shall survive any termination of this Agreement. Additionally, the hotel component shall employ unionized labor at prevailing wages for its operations. 4.13 Labor Agreement Requirement. 4.14 Hotel Tax Rebate Incentive. A hotel tax rebate incentive may be negotiated between the City and the hotel operator consistent with the City's Hotel Incentive Program. 4.15 Parking. 4.15.1 The developer will not be required to replace the existing public parking. Therefore, no public funds shall be directed to the development project for the purpose of creation of public parking. 4.15.2 The City and the developer will review and resolve all existing parking obligations associated with the existing municipal parking structure. 4.15.3 The City shall be responsible for removing all City parking equipment prior to commencement of demolition. 4.15.4 The developer shall provide a Parking Management Agreement. Part of that agreement will include provisions for the City to maintain and operate the parking structure until such time that the property must be prepared for demolition. 4.15.5 Existing street parking meter and, parking activity must remain intact. 55394.00000\29008220, t 6 5 D -2 9 4.16 Community Outreach. Developer is required to provide Community Outreach with all stakeholders to hear and address concerns over parking and construction during and after construction. 4.17 Staging Locations. Developer shall be fully responsible for securing and leasing staging locations at the developer's expense to the satisfaction of the City. The construction staging location and equipment shall not impede day-to-day activities in surrounding areas. Article 5 DEFAULTS AND REMEDIES 5.1 Default. Subject to extensions of time set forth herein, or any other extension of time that may be agreed to by the parties, and the specific remedies set forth in sections 5.5-5.7 below, failure or delay by either party to perform any teen or provision of this Agreement constitutes a default under this Agreement. The non -defaulting party shall notify the defaulting party that a default exists and that the defaulting party must cure or commence to cure and diligently prosecute to completion any such default within thirty (30) days of receipt of the notice of default, The party who so fails or delays 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. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party shall be liable to the non -defaulting party for damages caused by such default. Except as otherwise expressly provided in this Agreement, any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies or deprive such party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies. 5.2 Legal Actions, In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default or to obtain any other remedy (including specific performance) consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Yolo, State of California, in any other appropriate court in that county, or in the Federal District Court in the Eastern District of California. Further, the non -defaulting party may file legal action to require the defaulting party to specifically perform the terms and conditions of this Agreement. 5.3 Applicable Law. The laws of the State of California, excepting those provisions dealing with choice of law, shall govern the interpretation and enforcement of this Agreement. This Agreement has been negotiated at arm's length and between persons sophisticated and lmowledgeable in the matters dealt with herein. In addition, each party has been represented by 5 5394. 00000\29008220. 1 65 D-30 experienced and knowledgeable legal counsel. Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purposes of the parties and this Agreement. 5.4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or any other default by the other party. 5.5 Termination by the Developer Prior to Conveyance. In the event that prior to conveyance of the City Property to the Developer: 5.5.1 If the Developer identifies any existing contamination on the City Property, and the Developer elects not to remediate any such existing contamination, or for any other reason the Developer determines that the condition of the City Property is not suitable for development pursuant to this Agreement; or 5.5.2 If any of the Developer's conditions precedent to conveyance are not satisfied by the time set forth in this Agreement despite City's good faith efforts to do so, and such failure is not cured within thirty (30) days after written notice from Developer or, if such failure cannot be reasonably cured within such 30 day period, the City is not diligently acting to cure such failure in a timely manner; or 5.5.3 Subject to Force Majeure, all conditions precedent to conveyance are satisfied or waived by the party benefiting from such condition and the City, despite City's good faith efforts, is unable to tender conveyance of fee interest in the City Property or possession thereof in the manner and condition and by the date provided in this Agreement, and any such failure is not cured within fifteen (15) days after written demand by the Developer or, if such failure cannot be reasonably cured within such fifteen (15) day period, the City is not diligently acting to cure such tenure In a timely manner; or 5.5.4 The Developer is unable, despite diligent efforts, to secure reasonable financing necessary for development of the City Property, or otherwise determines that the development of the City Property is not feasible due to the economic conditions then in existence, and the City and Developer are unable to mutually agree upon an alternative approach, which may include modifications or amendments to this Agreement; or 5.5.5 The City is in default under any other provision of this Agreement and such default is not cured within the applicable time periods; then this Agreement and any rights of the City or any assignee or transferee in this Agreement pertaining thereto or arising therefrom with respect to the Developer may, at the option of the Developer be terminated by written notice thereof to the City, as the Developer's sole and 55394,00000\2.9008220.1 65 D-31 exclusive remedies for the matters described in this subsection. Upon such termination, and except for those provisions which are specifically intended to survive any termination of this Agreement, the parties shall have no further obligations to or rights against each other. Notwithstanding the foregoing, in the event that Developer terminates the Agreement pursuant to this Section 5.6 after the completion of the Feasibility Period, except for terminations based upon any default by City, the City shall retain the Deposit as liquidated damages as provided in Section 5.7 of this Agreement. 5.6 Termination by the City Prior to Conveyance. In the event that prior to conveyance of fee interest in the City Property to the Developer: 5.6.1 The Developer transfers or assigns this Agreement or any rights herein in violation of this Agreement; or 5.6.2 There is a change in the ownership or identity of the Developer or the parties in control of the Developer in violation of the provisions of this Agreement; or 5.6.3 The Developer does not submit the evidence required under Section 3.16 that it has the necessary commitment letters for financing for development of the City Property in the manner and by the date provided in this Agreement and such failure is not cured within thirty (30) days after written notice from City or, if such failure cannot be reasonably cured within such thirty (30) day period, the Developer is not diligently acting to cure such failure in a timely manner; or 5.6.4 The Developer does not submit the Deposit within the time provided herein; or 5.6.5 The Developer does not satisfy all its conditions precedent to Close of Escrow pursuant to this Agreement prior to the date set forth for Close of Escrow herein and such failure is not cured within fifteen (15) days after written demand by the City or, if such failure cannot be reasonably cured within such fifteen (15) day period, the Developer is not diligently acting to cure such failure in a timely manner, or 5.6.6 The Developer has failed to satisfy all of the conditions to Close of Escrow set forth herein prior to the Outside Date, 5.6.7 The Developer is in breach or default with respect to any other material obligation of the Developer under this Agreement prior to Close of Escrow; and if any default or failure referred to above shall not be cured within thirty (30) days after the date of written demand by the City or, if such default cannot be reasonably cured within such thirty (30) day period, the Developer is not reasonably acting to cure such default in a timely manner; then this Agreement, and any rights of the Developer or any assignee or transferee in this Agreement pertaining thereto or arising therefrom with respect to the City, may, at the option of the City, be terminated by the City by written notice thereof to the Developer, and provided such termination occurs after the end of the Feasibility Period, the City shall retain the Deposit as liquidated damages, and such liquidated damages and termination of this Agreement shall constitute the City's sole and exclusive remedies for the matters described in this subsection. Upon such termination, and 5 53 94.00000\29008220.1 65 D-32 except for those provisions which are specifically intended to survive any termination of this Agreement, the parties shall have no further obligations to or rights against each other. 5.7 Liquidated Damages IF THIS AGREEMENT IS TERMINATED BY THE CITY FOR A DEFAULT OF THE DEVELOPER PRIOR TO CLOSE OF ESCROW OR BY DEVELOPER AFTER THE END OF THE FEASIBILITY PERIOD, THE DEPOSIT MAY BE RETAINED BY THE CITY AS LIQUIDATED DAMAGES AND AS ITS PROPERTY WITHOUT ANY DEDUCTION, OFFSET OR RECO'UPMENT WHATSOEVER. IF THE DEVELOPER SHOULD DEFAULT UPON ITS OBLIGATIONS, MAKING IT NECESSARY FOR THE CITY TO TERMINATE THIS AGREEMENT AND TO PROCURE ANOTHER PARTY OR PARTIES TO REDEVELOP THE SITE IN SUBSTANTIALLY THE MANNER AND WITHIN THE PERIOD THAT SUCH SITE WOULD BE REDEVELOPED UNDER THE TERMS OF THIS AGREEMENT, THEN THE DAMAGES SUFFERED BY THE CITY BY REASON THEREOF WOULD BE UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS THE CONSIDERATION THAT SUCH PARTY WOULD PAY FOR THE SITE; THE EXPENSES OF CONTINUING THE OWNERSHIP AND CONTROL OF THE SITE; OF INTERESTED PARTIES AND NEGOTIATING WITH SUCH PARTIES; POSTPONEMENT OF TAX REVENUES THEREFROM THE COMMUNITY; AND THE FAILURE OF THE AGENCY TO EFFECT ITS PURPOSES AND OBJECTIVES WITHIN A REASONABLE TIME, RESULTING IN ADDITIONAL IMMEASURABLE DAMAGE AND LOSS TO THE CITY AND THE COMMUNITY. IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH DAMAGES TO THE CITY, BUT THE PARTIES ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM, THAT SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF THE DEPOSIT HELD BY THE CITY AT THE TIME OF THE DEFAULT OF THE DEVELOPER, AND THE AMOUNT OF SUCH DEPOSIT SHALL BE PAID TO THE CITY UPON ANY SUCH OCCURRENCE AS THE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY, IN THE EVENT THAT THIS PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON, THE CITY SHALL BE ENTITLED TO THE FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW. THE DEVELOPER AND THE CITY SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR SIGNATURES HERE: 0 5.8 Termination Followina Conveyance. Following conveyance of the City Property, in addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, or recover damages for any default, or to obtain any other remedy consistent 55394.00000\29008220,1 65 D-33 with the purpose of this Agreement, including but not limited to specific performance under this Agreement. Article 6 GENERAL PROVISIONS 6.1 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 or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. The Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. 6.2 Non -Liability of City Officials and Employees. No member, official or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City, or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Agreement, except as may be caused by intentional torts or criminal activities of any such City member, official or employee. Developer hereby waives and releases any claim it may have against the members, officials or employees of the City with respect to any default or breach by City or for any amount which may become due to Developer or its successors, or on any obligations under the terms of this Agreement, except as may be caused by intentional torts or criminal activities. 6.3 Force Majeure. Subject to the limitations set forth below, performance by any party under this Agreement shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation; unusually severe weather; acts or omissions of the other party; or other circumstances beyond the control of such party ("Force Majeure"). An extension of time for any such cause shall be for the period of the force majeure delay and shall commence to run from the time of the commencement of the cause (but in any event shall not exceed a cumulative total of one hundred eighty (180) days), if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City and Developer. 6.4 Inspection of Books and Records. The City has the right, upon not less than seventy-two (72) hours' notice, at all reasonable times, to inspect the books and records of the Developer pertaining to the Project Site as pertinent to the purposes of this Agreement 6.5 Time is of the Essence. Time is of the essence in the performance of this Agreement. 6.6 Waiver. A waiver by one party of the performance of any covenant, condition or promise of the other party shall not invalidate this Agreement, nor shall it be considered to be a waiver by such party of any other covenant, condition or promise contained herein. The waiver of either or 55394.00000\29008220. 1 65 D-34 both parties of the time for performing any act shall not be construed as a waiver of any other act required to be performed at a later date. 63 Notices, All notices that are given pursuant to this Agreement shall be in writing. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card. Notices delivered by the United States Express Mail, Federal Express, Airborne Express or another overnight courier that provides next business day delivery (the "Express Courier") shall be deemed given on the next business day after deposit of the same with the Express Courier. If any notice is transmitted by facsimile (fax) transmission or similar means, the same shall be deemed received or delivered upon the transmission thereof, provided a copy is also given via personal delivery or deposited with the Express Courier by no later than the next business day after such facsimile transmission. If notice is given or received on a Saturday, Sunday or legal holiday, or on a business day after 5:00 P.M., it shall be deemed given or received on the next business day, For purposes of notice, the addresses of the parties are as follows, which may be changed by five (5) days prior written notice: City: City of Santa Ana Attn: City Manager Telephone: Facsimile: With a copy to: City Attorney Developer: With a copy to: Attn: Telephone: Facsimile: Attn: _ Telephone: Facsimile: 6.8 Entire Agreement. This Agreement, including all attachments hereto, contains the entire agreement between the parties with regard to the Project Site and supersedes all prior written and/or oral representations and/or agreements, including, but not limited to, any letter of intent between the parties. 55394,00000\29008220.1 65 D-35 6.9 Attorneys' Fees. If an action is filed by any of the parties hereto to enforce and/or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, 6,10 Days. In computing any period of time by days as provided in this Agreement, the date of the act, event or default from which the designated period of time begins to run will not be included. If the date for performance or last day of any time period stated in this Agreement falls on a day that is not a business day, then the due date or the duration of such time period will be extended so that it ends on the next succeeding day that is a business day. A "business day" is a day of the week that is not a Saturday, Sunday, or legal holiday recognized by the banks, United States Postal Service or the Recorder of the County. 6.11 Relationship of the Parties. Nothing in this Agreement is intended to create a partnership or joint venture between the parties or make one party the agent of the other, 6.12 Headings. Any headings or captions used herein are inserted only as a matter of convenience and for reference only and in no way defines limit or describe the scope of this Agreement nor the intent of any of the provisions hereof. 6.13 Context. The words or phrases that are not proper nouns that begin with capital letters are defined terms that have the meanings that are assigned to them in this Agreement. The singular form shall include the plural and vice versa; adverbs such as "herein," "hereto," and "hereunder" shall refer to this Agreement in its entirety and not to any specific section or paragraph; and the terms "include," "including," and similar terms shall be construed as though followed immediately by the phrase "but not limited to". "Recorded" means to be recorded in the Official Records of the County of Yolo. Unless specified to the contrary, any reference to a section or paragraph shall be to a section or paragraph of this Agreement. All Attachments referred to in this Agreement are attached to it and incorporated herein and made a part of this Agreement by this reference. 6.14 Counterparts. This Agreement may be signed by the parties in different counterparts, and the signature pages combined shall create a document binding on all parties. 6.15 City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, unless specifically provided otherwise or the context requires otherwise. 6.16 Modifications; Amendments. The Developer and City agree to mutually consider reasonable requests for amendments to this Agreement that may be made by any of the parties hereto, subtenants of Developer, lending institutions or bond counsel or financial consultants to Developer or the City, provided such requests are consistent with this Agreement and would not materially alter the basic business terms included herein. Any waiver, alteration, change, modification or amendment of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party. The City Manager shall be authorized to approve any modification or amendment to the Schedule of Performance or other minor modification or amendment hereto that does not alter the basic business terms included 55394.00000\29008220. 1 65 D-36 herein. Any substantive or significant alteration, change, modification or amendment of ar to this Agreement shall require approval by the City Council. 6.17 Entire Agreement, Waivers and Amendments. This Agreement is executed in four (4) duplicate originals, each of which is deemed to be an original. This Agreement comprises pages 1 through inclusive, and Attachments Nos. 1 through _ which, together with all documents and agreements referenced herein, constitute the entire understanding and agreement of the parties with respect to the Project Site. This Agreement integrates all of the terms and conditions: mentioned herein or incidental hereto and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. 6.18 Time for Acceptance of Agreement b�Ci1v. This Agreement, when executed by the Developer and delivered to the City, must be authorized, executed and delivered by the City within thirty (30) days after the date of signature by the Developer or this Agreement shall be void, except to the extent that the Developer may consent in writing to further extensions of time for the authorization, execution and delivery of this Agreement. The effective date of this Agreement shall be the date when this Agreement has been signed by the City. 5 3 3 94.00000\29008220.1 65D-37 , 2016 "CITY" APPROVED AS TO FORM: City Attorney CITY OF SANTA ANA, a California Charter City By: Mayor ATTEST: By: City Clerk 2016 "DEVELOPER" 5539h.00000\?9008220,1 65 D-38 ATTACHMENTS Attachment No. I Map of the Project Site Attachment No. 2 [Intentionally Blank] Attachment No. 3 Legal Description of the City Property Attachment No. 4 Schedule of Performance Attachment No. 5 Scope of Development Attachment No. 6 Form of Grant Deed 5 53 94.00000\29008220. 1 65 D-39 ATTACHMENT NO. 1 Map of the Project Site 55394.00000129008220.1 65 D-40 ATTACHMENT NO.2 [Intentionally Left Blank] 55394.0000W9008220.1 65 D-41 ATTACHMENT NO.3 Legal description of the City Property 55394.00000\29008220.1 65 D-42 ATTACHMENT NO.4 SCHEDULE OF PERFORMANCE/MILESTONES Action Date 1. Execution of Agreement by City. The City shall Within _ days after execution and delivery by authorize execution of this Agreement and deliver j the Developer. this Agreement to the Developer. 2. Submission of Preliminary Title Report. The City t shall cause to be prepared and delivered to the Developer a Preliminary Title Report for the City _ ..- Property 3. Approval of Preliminary Title Report. The Developer shall approve the Preliminary Title Report for the Site. 4. Feasibility Period. The Developer shall complete its investigations and approve or disapprove of the condition of the City Property, and decide whether to move forward with the Hotel Protect. 5: Submission of Site and Construction Plans and Construction and Operating Budget. The Developer shall prepare and submit to the City final construction plans, drawings and related documents. 6. Aonroval of Site and Construction Plans and Construction and Operating Budget. The City shall approve the Developer's final construction fans. 7. Submission of Evidence of Financing. The Developer shall submit evidence of adequate financing to construct the Project. 8. Approval of Evidence of Financing. The City shall review and approve Developer's evidence of adequate financing to construct the Project. 1 Within days following execution of Agreement by City. Within , days after receipt of updated Preliminary Title Report from City (following acquisition of Successor Agency Parcels). Within days after execution of this Agreement by the City. Within _ days after execution of this Agreement by the City. In accordance with City's normal plan cheek and design review process. Concurrent with or immediately following approval of final Construction and Operating Budget, but in any event within days prior to close of escrow: Within _ days after receipt thereof by the Agency. 9. Satisfaction of All Conditions Precedent to Close At or prior to the close of escrow. of Escrow. Developer and City, as applicable, shall complete all other conditions precedent to close of escrow provided for in Section 3.5. 55394,00000\29008220.1 65 D-43 Action 13. Deposit of Grant Deed and Purchase Price. Developer and City, as applicable, shall deliver into escrow the Grant Deed, Purchase Price, and all required funds. 15, Merger of Project Site. Developer shall record an approved parcel map and/or lot line adjustment as 14. Close of Escrow. The City shall convey title to the City Property to the Developer, and the Developer 16. Certificates of Insurance. The Developer shall deliver to the City certificates of insurance. 17. Commencement of Construction. The Developer shall commence construction of the improvements on the Proiect Site, 18. Comnletion of Construction. The Developer shall complete construction of the improvements on the Site. 19. Issuance of Certificate of Comnletioa. The City shall firnish the Developer with a Certification of Completion for the Project, Date Not later than days prior to the close of escrow. Immediately following or concurrent with Close of Escrow Prior to or concurrently with the close of Developer's construction loan for the Project, which shall occur no later than Prior to commencement of any work on the City Property. Within — days after close of escrow. Within ^ months after commencement thereof. Promptly after completion of all construction required to be completed by the Developer on the Site, and upon written request therefor by the Developer. 55394.00000\29009220.1 65 D-44 ATTACHMENT NO.5 SCOPE OF DEVELOPMENT The Project Site shall be developed by Developer in accordance with the provisions of this Agreement and the plans, drawings and related documents as approved by the City pursuant to entitlement and permit application processes. Hotel of 80 rooms or keys Residential Project of no more _ floors. City will maintain management and operation of the garage until he is at point of demolition, Developer will have obtained demolition permit. Must have a hotel operator labor agreement. The Developer shall construct, or cause to be constructed, on the Project Site an extended stay hotel with a minimum three start rating, with approximately square feet of commercial space on the first floor of the building for retail and restaurant space. pool. only. The hotel will include at least _ rooms, a main lobby, meeting rooms and an indoor The Project Site shall provide parking sufficient to serve the demands of the Project The "Project" shall not be required to provide public parking. Describe alley improvements Describe trash and sanitation plan Removal of foot bridges. Describe roof top plans. Architectural Design. The architectural design of Project shall be consistent with the requirements of the City of Santa Ana and in accordance with the Basic Concept Drawings attached hereto as Exhibit A and are incorporated herein by this reference. Landscape design, signage, and screening for trash areas, fire related mechanical devices, rooftop equipment and other building elements with required screening for the Hotel Project, shall all be consistent with the standards of the City of Santa Ana. Shall have submitted a Staging Plan for street closures, phasing for the facilities etc. 5 53 94.00000 \29008220A 65 D-45 Prior to evidence demonstrating that the existing parking agreements have been extinguished. .55394.00000\29008220.1 65 D-46 ATTACHMENT NO.6 Form of Grant Deed 553 94, 00000\29008220.1 6.5 D-47 ATTACHMENT NO.7 Form of Reciprocal Easement Agreement 55394.00000\29008220. ( 6 5 D -48 65D-49 Exhibit 4 Resolution No. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA DIRECTING THE CITY ATTORNEYS' OFFICE TO NEGOTIATE A DISPOSITION AND DEVELOPMENT AGREEMENT WITH CARIBOU INDUSTRIES, INC. OR ITS AFFILIATES CONCERNING A MIXED USE/HOTEL DEVELOPMENT AT THIRD & BROADWAY WHEREAS, the City believes that continued economic development in the Artists Village is in the best interests of the City insofar as the Artists Village promotes tourism, diversifies the City's economic base, and further solidifies the City's position as a regional and State economic hub; WHEREAS, to this end, the City has adopted numerous economic incentive policies to further stimulate growth in and around the Artists Village including, but not limited to, a unique tax incentive program to encourage the development of visitor serving hotel uses in and adjacent to the Artists Village; WHEREAS, for the past several years, the City has been actively pursuing a mixed use development at Third & Broadway consisting of residential, retail, office and hotel; WHEREAS, on May 3, 2013 and September 16, 2014, the City previously sought responses from qualified developers to a request for proposals to enter into a disposition and development agreement with the City to develop the Third & Broadway project; WHEREAS, Caribous Industries, Inc. ("Developer") responded to the RFP and on July 5, 2016 was selected by the City as the Developer and the City directed City Staff to prepare a disposition and development agreement with Developer; WHEREAS, the City's Development and Transportation Committee have been working with the Developer to negotiate such a disposition and development agreement to implement the Project; WHEREFORE, in light of the importance of the Third & Broadway project to the overall economic development goals of the City, the City Council hereby directs the City Attorneys' Office to negotiate a development and disposition agreement with Developer concerning a mixed use development at Third & Broadway consisting of the following terms and to be brought back to the City Cow-icil for further action at a City Council meeting to be held no later than December 31, 2016: Developer is to purchase the property at no cost to Developer (as an incentive to invest in excess of $70,000,000) with the intention of demolishing the existing parking garage and building a mixed use residential/retail/office/hotel project. 1032/028269-0006 10259001.1 a10/24/16 65 D-50 2. The developer shall be required to deposit $50,000 within five (5) days of opening an escrow. 3. The Agreement shall only become binding once California Environmental Quality Act ("CEQA") compliance has been achieved and Developer has obtained land use entitlements. Transfer of the title of the property shall only take place after CEQA compliance and land use entitlements have been obtained. 4. The developer shall obtain all necessary entitlements at its own expense. 5. A quality hotel component consisting of no fewer than 60 rooms is a required component of the proposed project. The hotel may be built at the same time as the rest of the project or in a subsequent phase, as described by the developer with a justification for its phasing and timing. If the hotel is built at the same time, and within 6 months of the certificate of occupancy the hotel is proven to be unsuccessful, the hotel rooms can be rented as studio apartments. 6. A hotel tax abatement incentive may be negotiated between the City and the developer. 7. The developer shall build the project paying prevailing wages. 8. The developer will replace the existing public parking with between 253-300 parking spaces. The City will leaseback the parking spaces from developer for 40-years at $95 per space per month. The City will fund between $8,053,243 and $9,549,300 (number of spaces x $31,831 per space = cost) for the public parking portion of the above ground parking structure. 9. The City and the developer will review and resolve all existing parking obligations associated with the existing municipal parking structure. 10. The City shall convey property titles immediately prior to a previously scheduled and full authorized demolition of the existing improvements on the property. 11. The demolition of the existing improvements and subsequent construction of the new project shall take place consistent with agreed upon terns and timelines set forth in the DDA. 12. Any unauthorized delays by the developer, except reasonable delays for force majeure, weather, economic downturn, etc., at any agreed upon phase of construction shall be subject to penalties set forth in the DDA. 13. The new development project shall be designed by Studio One Eleven to exemplify the City's commitment to excellent design and sustainability in Santa Ana. 14. Prior to issuance of final certificates of occupancy, general, standard, and specific conditions and obligations set forth for this project shall be met within the timelines outlined in the DDA subject to the reasonable carve -outs outlined in #12 above. 15. Developer is required to provide reasonable Community Outreach with all stakeholders living within the immediately surrounding neighborhood and within 200 feet of the project, to hear and address reasonable concerns during and after construction. 1032/028269-0006 10259001,1 al 0/24/16 65D-51 16. The developer shall provide a Parking Management Agreement. Part of that agreement will include provisions for the City to maintain and operate the parking structure until such time that the property must be prepared for demolition. 17. The proposed development must reconnect Sycamore Street between 3rd Street and 4th Street for both vehicle and pedestrian access. 18. Existing street parking meter and parking activity must remain intact except for street closures for construction. 19. Developer shall reasonably improve the alley adjacent to the property according to specifications determined during the entitlement review process. 20. Developer shall remove the existing pedestrian bridges. 21. Developer shall provide ground floor, pedestrian oriented commercial uses as will be detailed during the entitlement process. 22. The developer shall provide a reasonable construction schedule, staging and management plan to be reviewed and approved by the City to eliminate or mitigate impacts to the surrounding businesses and the public during construction. 23. The construction management and mitigation plan shall be discussed and reasonably analyzed as part of the environmental review process prior to final approvals. 24. Developer shall be fully responsible for securing and leasing staging locations at own expense as approved by City. 25. City shall be responsible for removing all City parking equipment prior to commencement of demolition. PASSED, APPROVED and ADOPTED this day of November 2016. /s/ [Mayor] t032/028269-0006 10259001.1 at 0/24/16 6 5 D -52 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 21, 2017 TITLE: PUBLIC HEARING — GENERAL PLAN AMENDMENT NO. 2016-03 AND AMENDMENT APPLICATION NO. 2016-03 FOR A PROPOSED PARK AT 415 AND 423 SOUTH RAITT STREET — CITY OF SANTA ANA PARKS, RECREATION AND COMMUNITY SERVICES AGENCY, APPLICANT (STRATEGIC PLAN NO. 5, 4A) Z4;� lz�l CITY TANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Adopt a resolution approving General Plan Amendment No. 2016-03. 2. Adopt an ordinance approving Amendment Application No. 2016-03. PLANNING COMMISSION ACTION At its regular meeting on January 23, 2017, by a vote of 6:1 (Contreras -Leo opposed), the Planning Commission recommended that the City Council adopt a resolution approving General Plan Amendment No. 2016-03 and adopt an ordinance approving Amendment Application No. 2016-03 to change the general plan and zoning designations of two parcels of land at 415 and 423 South Raiff Street from residential to open space to facilitate the future construction of a park. The Planning Commission made no changes to the recommended actions outlined in the attached staff report (Exhibit A). DISCUSSION The City of Santa Ana Parks, Recreation and Community Service Agency (PRCSA) is requesting to rezone two parcels of land from residential to open space to allow the construction of a future public park. At this time, PRCSA has not yet conducted any technical studies and park designs have not been drafted. This action is solely a land use action required in order to facilitate the future construction of such park and to assure the park will be in conformance with the City's General Plan and Zoning designations. As part of this application, staff will amend the General Plan Land Use Element text and map and zoning map. 75A-1 GPA No. 2016-03 & AA No. 2016-03 — Proposed Park at 415 and 423 South Raitt Street February 21, 2017 Page 2 The City is committed to providing parks and recreational facilities for the benefit and welfare of the community. The City has been working with the National Park Service (NPS) to identify additional park acreage in the City in order to mitigate the loss of 2.6 acres of park land at Centennial Park, which is being used by the Rancho Santiago Community College District (RSCCD) as their adult education campus. The future park at 415 and 423 South Raitt Street will address the concerns of the NPS and will provide park space in an under -served park neighborhood. 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), Strategy A (support the design and construction of parks to provide increased open space and opportunities for recreation throughout the city, construct the Roosevelt Walker Park and Community Center, and develop concepts and proposals for the Library Park in Civic Center and Centennial Santa Ana River Eco-Park). FISCAL IMPACT There is no fiscal impact associated with this action. Hassan Hagh. ni, 91tp Executive Director Planning & Building Agency JG:rb M:\General Plan Zoning Amendment\GPA No. 2016-03 & AA No. 2016-03\GPA No. 2016-03 & AA No. 2016-03.cc Exhibit: A. Planning Commission Staff Report B. Resolution C. Ordinance 75A-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: JANUARY 23, 2017 TITLE: PUBLIC HEARING — FILED BY THE CITY OF SANTA ANA PARKS, RECREATION AND COMMUNITY SERVICES AGENCY FOR GENERAL PLAN AMENDMENT NO.2016-03 AND AMENDMENT APPLICATION NO.2016-03 FOR A PROPOSED PARK AT 415 AND 423 SOUTH RAITT STREET (STRATEGIC PLAN NO. 5, 4A) Prepared by Jerry C. Guevara ..___ xecutive Director Recommend that the City Council: PLANNING; COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Pianni g Manager 1. Adopt a resolution approving General Plan Amendment No. 2016-03. 2. Adopt an ordinance approving Amendment Application No. 2016-03. Executive Summary On January 9, 2017, the Planning Commission held a public hearing to consider General Plan Amendment No. 2016-03 and Amendment Application No. 2016-03. At that time, the Planning Commission continued the public hearing to January 23, 2017 and requested that staff provide additional background information on the project and information on any community outreach conducted, and requested that representatives from the Parks, Recreation and Community Service Agency (PRCSA) and the Community Development Agency (CDA) be present at the next meeting. PRCSA is requesting approval of a general plan (text and map) amendment and a zone change (amendment application) on two properties to facilitate the future construction of a public park. The project proposes to change the properties General Plan land use designation from Law Density Residential (LR-7) to Open Space (OS) and zoning designation from Single -Family Residential (R-1) to Open Space (0). EXHIBIT A 75A-3 GPA No. 2016-03 & AA No. 2016-03 January23, 2017 Page 2 "table 1, Project and Location Information Item ' infotmaticsn Project Address 416 and 423 South Raitt Street Nearest Intersection Raitt Street and Myrtle Street northeast corner General Plan Designation Existing I Proposed Low Density Residential (LR-7) I Open S ace(t3). Zoning Designation Single -Family Residential (R-1) I Open Space (0 Surrounding Land Uses North I Multi -Family Residence East Sin le -Family Residence South Single -Family Residence West Sin le-Farriily Residence Site Size (combined) 45,911 Square Feet (1,1 acres) Existing Site Development The two properties are currently vacant but were previously developed with two single-family residences that were demolished in. 2006. Attachments Exhibit 1 (Vicinity Map), Exhibit 2 (Land Use Map), Exhibit 3 (Site Photo), Exhibit 4 (Revised Land Use Element), Exhibit 5 (Revised General Plan Land Use Ma , and Exhibit 6 Revised Zoning Ma Project Descrlptjon The City of Santa Ana PRCSA is requesting to rezone two parcels of land from residential to open space to allow the construction of a future public park. At this time, PRCSA has not yet conducted any technical studies and park designs have not been drafted. This action is solely a land use action required in order to facilitate the future construction of such park and to assure the park will be in conformance with the City's General Plan and Zoning designations. As part of this application, staff will amend the General Plan Land Use Element text and map as shown on Exhibits 4 and 5 and zoning map as shown on Exhibit 6. Proiect Background and Chronology agWect Property Background The subject site was previously developed with single-family residences on both lots that were constructed in the 1920s. The sites were cleared in 2006; none of the structures were listed on the City's Register of Historical Properties, The subject properties were cleared and fenced -off at the direction of the City Manager and PRCSA to prevent vandalism, squatters, trespassing and avoid injuries, 75A-4 ." f t 1# : "" 1• 1 January 23, M Page 3 Centennial Park and National Park Service In the 1970s, Centennial Park was obtained by the City from the United States government with use restrictions that required the land to be used for public recreational purposes. In 1979, the City licensed approximately 1.76 acres of land to the Rancho Santiago Community College. District (RSCCD) to build and operate an educational facility for 30 years. The City then allowed RSCCD to expand its facility to include a total of approximately 2.6 acres of land, the facility is known as Centennial Education Center (CEC). The 30-year license agreement with RSCCD was set to expire in November 2009, but was extended by the City as RSCCD expressed interest to convert the license agreement into a long-term lease in order to make improvements to its facilities. This request was initially denied by the National Service (NPS), the agency in charged with enforcing and interpreting the use restrictions, because it did not satisfy the public recreational use restrictions. NPS then requested that RSCCD vacate the site by 2019 or work with the City on a land conversion plan. On August 18, 2015, the City Council authorized an agreement with RSCCD to move forward with a land conversion plan to consider allowing CEC to remain at Centennial Park. The NPS established a protocol for land conversion approval which is identified as an Evaluation Criteria Study. Six properties, including the subject properties, met the Evaluation Criteria Study standards and were selected by the City as part of the conversion plan. Transaction of Land and Prior Community Outreach On November 17, 2015, the City Council approved staffs recommendation to move forward with the administrative process required to acquire the subject properties to provide for new open space using Community Development Block Grant (CDBG) funds. On January 19, 2016, the City Council held a public hearing and approved a Substantial Amendment to the 2015-2016 Annual Action Plan for the reallocation of CDBG funds for the acquisition of these properties. This amendment to the Annual Action Plan required a 30-day public comment period from December 14, 2015 through January 13, 2016. Following the 30-day public comment period, the Redevelopment and Housing Commission held a public hearing on this action; no comments were received. On April 5, 2016, the City Council adopted a resolution making findings with respect to the consideration to be received by the Housing Authority as the Housing Successor Agency pursuant to a Purchase and Sale Agreement between the Housing Authority and the City for the sale of 415 and 423 South Raitt Street and authorized the City Manager and Clerk of the Council to execute the Purchase and Sale Agreement and all required documents for the acquisition of the subject properties. 75A-5 GPA No. 2016-03 & AA No. 2016-03 January 23, 2017 Page 4 Project AnalvsIs General Plan Amendment The existing General Plan land use designation for the project area is Low density Residential (LR,7), which only allows the construction of single-family homes or seven dwelling units per acre. In orderto facilitate the future construction of a park, this land use designation needs to be changed to Open Space (0), which allows for the construction of parks, water channels, cemeteries and other open space cases. Currently, a total of 1,014.7 acres are included in this land use designation. Of this total, 358 acres of public park land are included in this land use designation, This General Plan amendment application will change this to a total of 1,015,13 acres of land, The creation of additional public open space or park area implements the City's Open Space, Parks and Recreation Element Goal 1 of providing' sufficient open space to meet the recreational and aesthetic needs of the community. Furthermore the City's Land Use Element Goal 1 promotes a balance of land uses to address basic community needs and Policy 1.7 calls for the support of open space in under -served areas, such as the project site. The change to an Open apace land use designation will provide an additional 45,911 square feet or 1.1 acres of public parkland and will provide park space in a neighborhood currently under -served. Amendment Application The project area is currently zoned Single -Family Residential (R-1), which does not identify park or open space as a permitted use. The proposed zone change (amendment application) is required to change the zoning for the 1.1 acre site from Single -Family Residential (R-1) to Open Space (0) to facilitate the future park construction to serve the surrounding community. In addition, the project site is physically suitable to be developed as a park and will conform to the development standards of Division 23 (Open Space) of the Santa Ana Municipal Code (SAMC). The zone change would need to be approved in conjunction with the proposed General Plan amendment. This would result in a project that is consistent with the goals and objectives of the City's General Plan land use designation of Open Space. Because the proposed General Plan Amendment is consistent with the General Plan Open Space, Parks and Recreation Element, the zone change would be consistent with the overall visioning for the project site and immediate vicinity. In addition, the project will alleviate a disparity in access to parks and recreation in the city and will serve this park deficient neighborhood. Parks and open space offer multiple benefits. These benefits include the joy of playing in the park; social cohesion; bringing people together; improved overall physical and social health; and promote conservation values of clean air, water and land. The proposed park, when built, will assist in enacting residents into open space and community 75A-6 GPA No. 2016-03 & AA No. 2016-03 January 23, 2017 Page 5 building. Neighborhood parks have been identified as key components in supporting healthy communities and social support. Furthermore, parks play an important role in providing people with places to celebrate culture and art and will support the City's efforts of creating a park sustainable future. Table 3• CEQA Strategic Plan Alignment and Public Notification &Community Outreach CEQA, Strate ic. Plan Alignment, and, Public Notification & Comrimunity Outreach 'CEQA CEQA T e General Rule Section 15061 b 3 __ Document T e General Rule Exemption (ER No. 2016-26) Reason(s) Exempt This exemption applies to projects where it can be seen with certainty that or Analysis there is no possibility that the activity in question may have a significant effect on the environment. The future development of a park will not have a significant effect on the environment or surrounding neighborhood. The future park will be consisted with the City's General Plan Land Use Element and Open Space, Park and Recreation Element, and will provide park area and recreational services to an under -served neighborhood. Strafe' a9 q P ian Ali n� ment' Goal(s) and Goal 5 Community Health, Livability, Engagement and Sustainability Objective 4 Policy(s) states "support the design and construction of parks to provide increased open space and opportunities for recreation throughout the City." Publics Notification & Community Outreach', , Required Measures A public noticed was posted on the roject site on December 27, 2016 Notification by if were mailed to all property owners and occupants within 500 feet of the project site on December 29, 2016 Newspaper posting was published in the Orange County Reporter on December 30, 2016 The presidents of the Central City Neighborhood Association and Casa Bonita Neighborhood Association were contacted by phone and notified of this public meeting. CEQA,;Strate is Plan Alignment, and Public Notification & Community Outreach Public Notification & Communit Outreach Pursuant to SB 18, the City contacted the Native American Heritage Commission (NAHC) and a Tribal Consultation List was provided. A letter addressing this project was mailed on September 30, 2016 to all tribes listed on the Tribal Consultation List; tribes were given 90 days or until January 3, 2017 to consult with the City, The City consulted with three local tribes and requested that an archaeologist be present during all ground disturbances and stated that if prehistoric resources are identified a Native American monitor should be present for the duration of all ground disturbances. 75A-7 GPA No. 2016-03 & AA No. 2016-03 January 23, 2017 Page 6 Conclusion The City is committed to providing parks and recreational facilities for the benefit and welfare of the community. The City has been working with the National Park Service (NPS) to identify additional park acreage in the City in order to mitigate the loss of 2.6 acres of park land at Centennial Park, which is being used by the rancho Santiago Community College District (RSCCD) as their adult education campus. The future park at 415 and 423 South Raitt Street will address the concerns of the NPS and will provide park space in an under -served park neighborhood. Based on the analysis provided within this report, staff recommends that the Planning Commission recommend that the City Council approve General Plan Amendment No. 2016-03 and Amendment Aoolicati6n No. 2016-03. JG: jm WGenoral Plan Zoning AmendmenAGPA No. 2016.03 & AA No. 2016-OMPA No,, 2016-03 & AA No..2016,03.012317.Pc Attachments: Exhibit 1 General Vicinity Map Exhibit 2 — Existing Land Use Map Exhibit 3 — Site Aerial Map Exhibit 4 -- Proposed General Plan Land Use Map Exhibit 5 — Proposed General Plan Land Use Element Exhibit 6 -- Proposed Zoning Sectional District Map 75A-8 FIRST ST. -- C2 MI ° a ct 5P-7 C2 R2-PRD I waa�,2 II �itMtil —i1 li-�I. C2 i w, _. 17� i Al ij II ip§ nxA M e p Al ft9� R7 R1 r nl Art= J 5P-/ r✓___'_. 1I 11 i RI Rl R1RT Rl ui w MT Al 83 R3 u �PI a Y Rl eE ell,R2 N2 fl2 4 Q R1 � R1 RI Ri R1 R1 Al R1 x N1 3 R1 k R1 R Y. ,rxuu s. At AI R3 a1�i AI Ai RI AI � At a ftl � Ri At Rl RT. sr 888 R1 W,;4 R3 p P1 R1R1 AtR3 R3R1e a RT R1 R1 f9 O Q r R3. NI AI RI srvr MCFAM ci-nn qi m R1 RI ffi .1 R1 At Pce fti f JR1 RIi R2 p1rirl R1 R2 R1YRPHR7 nt ` Rl b R7 g R7 R1 R1 Rl s 5 s o R1 Ri R1 Rt fti fti si Al CrD•IiiLALAROMUNAL7 CR COMMEADALSESDE'IIAL RI SINELEMMUFMDWRAL -9 SIMNOM0019CA M cc WVMMENTCENTER w MOEAMILYPI MEN'E rMA MAMEIVALOWHMAN Mi LIGYTINDUSMAL m MLOM-DENSAYMULAFLE CI COMMLAWTYCOMiMEMAL M2 HFAWINDUSM1. FTMtLyssDWCE GWD CCMM. COMMENDALIMUMUM DISAACT MO MUWT'EMEA-RON3 R1 9MPUANAPAMMWTS C2 CY3dDW COWE&7AL 0 OFENSFACE PE FREIDWTIALESTATE C3 emmALanNEG5 P PROFEMONAL 9 SKURCDEiEOPMWT CM CB*1RN-K.MNESAR[1STNLLAW POD HANNEO MMMUNIT'DEFZOFMWT w 9SJNCPLAN CA R,ANNED91iN WCENTER FAD PLANNED FESIDWTIALDEM3.OFMENT C5 AWERALf MERDAL GPA 2016-03/AA 2016-03 CITY OF SANTA ANA 415 & 423 SOUTH RAITT STREET - �DDR¢r T'=1000 FEET P L A N N I N G A N D B U I L 0 1 N G A 6 E N C Y VICINITY MAP EXHIBIT 1 75A-9 GPA 2016-03/AA 2016-03 CITY OF SANTA ANA 415 & 423 SOUTH RAITT STREET P L A N N I N G A N D 8 U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 75A-10 f Sri t-z r x 4 _ a yice &01:ter. as C r ` GPA 2016-03/AA 2016-03 CITY OF SANTA ANA 415 & 423 SOUTH RAITT STREET SITE AERIAL MAP EXHIBIT 3 75A-11 q m CL c a!!! 0 E % ■■■■■n■■■n■ 0- _ m EXHIBIT4 75A.12 F� City of Santa Ana General Plan Land Use Element 1998 City of Santa Ana Planning Division Adopted February 2, 1998 (Reformatted January 2010) The following is a chronology of the approved general plan amendments that have been incorporated into this document since the comprehensive update of the General Plan land Use Element adapted by the Santa Ana City Council February 2, 1998 (GPA 1997- 05): GPA 2016-03 lomaliwl GPA 2016-02(MR 17, WIN GPA MDT-03(May 18. 20M) GPA 20W-01(May S. 2008) the voters M Santa Ana) GPA 2004-04(July 19.20N) GPA2000-09(May7,2001) GPA 200P08(February S. 2001) GPA 2016,01(April 19, 2016) GPA 201543(February 2, 2016) GPA 2004-03(Fetvuary 2. 209) GPA 2007-02(June 1%2007) GPA 2D04.06(July 6. 2004) GPA 2Wb02(Joe 16. 2003) GPA M03(December 4, 2000) GPA2MM2 plovemher 20,2000) GPA 2014-02(October 21, 2014) GPA 2014-01(June 3, 2014) GPA 2007-01(Much 19, 2W7) GPA 20MI (Oclober 2, 2006) GPA 2003-01(February 18, 2003) GPA 2002-01(September 3, 2W2) GPA 19M.02(Oclober 1& 1999) GPA IM01(August 16 1999) GPA 2011-03 (March 1% 20121 GPA 2W601(Deaember 5, 20M GPA 20S02(October IT, 20&5) GPA 200203 (August 19, 21)02) GPA 2001-03(February 192002) GPA IM04 (October 5, 1998) GPA 199MS(Septernow 21,1998) GPA 2011-02(Joe 6.2011) GPA 2010.01(June 7. 2010) GPA 2011401(Alel S. 2005, as passed by GPA 2001.02 (January 7.2002) GPA 1998-01 (May 4, 1998) EXHIBIT 5 75A-14 LAND USE ELEMENT Residential The Land Use Plan provides for three distinct residential land use designations. Residential development is also permitted in two other designations: District Center and Urban Neighborhood. The Santa Ana Land Use Plan includes the fallowing residential land use designations: The Low Density Residential (LR-7) designation applies to those areas of the City which are developed with lower density residential land uses, The allowable maximum development intensity is 7 units per acre. Development in this category is characterized primarily by single-family homes. This designation applies to a large proportion of the City [i 4�36; I, 44 acres) representing 47 percent of the City's total land area, The Low -Medium Density Residential (LAIR--11) designation applies to those sections of the City which are developed with residential uses at permitted densities of up to I units per acre. The land area included in this designation is approximately 420.6 acres. The great majority of the land designated as Low -Medium Density Residential is located in the westerly portion of the City, north and south of First Street. Properties with this designation are typically characterized by mobile home parks, a mixture of duplexes and single family residences, or small lot subdivisions, The Medium Density Residential (MR-15) designation applies to those sections of the City which are developed with residential uses at densities of up to 15 units per acre. Development in this designation is characterized by duplexes, apartments, or a combination of both. A total of 370.8 acres is designated as Medium Density Residential. The designation applies to areas located in the vicinity of downtown, areas north and south of MacArthur Boulevard, and in other areas where there are established multiple -family development projects. CITY OF SANTA ANA GENERAL FLAN A-19 75A-15 LAND USE ELEMENT The intensity standard for the Urban Neighborhood ranges from a floor area ration of 0.5 to 3.0; with residential density based on a combination of floor area ratio and zoning development standards. A total of 276 acres of land in the City are designated Urban Neighborhood. Industrial The Industrial designation applies to those areas developed with manufacturing and industrial uses. The designation applies to areas which are predominantly industrial in character, and includes those industrial districts in the southwestern, south central and southeastern sections ofthe City. A total of2,152.8 acres of land in the City is designated as Industrial. The maximum floor area ratio for this designation is 0,45. The Industrial districts of the City are vital to its economic health. These areas provide employment opportunities for local residents, and generate municipal revenues for continued economic development, As one of the County's oldest cities, Santa Ana has long been ail industrial center for the region. The City's goal. is to maintain this strong industrial base by setting land use policies which preclude the intrusion of less intensive commercial or residential uses. Typical uses found in this district include the fallowing: • Light and Heavy product manufacturing and assembly. • Commercial uses which are ancillary to industrial uses in the district. Institutional The Institutional designation includes the Civic Center, other governmental facilities, City facilities and public institutions such as schools; etc. Only public properties ofapproximately five acres or more are designated as Institutional. T he maximum applicable floor area ratio standard for this designation is 0.5. The 0.5 FAIL is used as a guideline since most development in this designation are State, federal, and local governmental facilities that are not subject to local development regulations. A total of 796.3 acres of land is included in this designation. Open Space The Open Space designation is applied to parks, water channels, cemeteries and other open space uses. Atotal of 1 01>.H1-;;f-H 4 7 acres are included in this land use designation. Ofthis total, 358 acres ofpublic parkland is included in this land use designation. A.24 CITY OF SANTA ANA GENERAL PLAN 75A-16 fl. RI Pt Rt t cx ; cx _ � a 1ST ST cz Q: ct a- cR ct czJ �c � ct n Rurrrn®® wwrs FRT ir lz 23. _ P. RI Rt PI I RI Rt 1� it / loWwa Sr Ig_R\ • `_ SYy 1\ J CutKp _ Rt � RI iaj MCFADRl kic RIp 1 N I R1 R1 ZONING DISTRICTS ME Al GENERALAGREULTURAL CSM SOUTHMANSTREECOMMERCIAL DIST. R2 TWO-FAMLYRESIDENCE -B PARKNGMODIFICATION Cl COMM" COMMERCIAL GC GOVERNMENTCENTER R3 MULTIPLE-FAMLY RESIDENCE -OZ OVERLAY ZONE CWD COWLINFY COMMERCIAL -MUSEUM DIST. M1 LIGHTINDUSTRIAL R4 SUBORBANAPARTMENi PLANNEDRESIDENTIAL PRO DEVELOPMENT C2 GENERAL COMMERCIAL W HEAW NOUSTRAL RE RESIDENTIAL ESTATE C4 PLANNED SHOPPNG CENTER 0 OPENSPACE SO SPEUICDEVEI.OPMENT -1102 HEIGHTDISTRICTI C5 ARTERIALCOMMERCIAL P PROFESSIONAL SP SPEC'.FICPLAN CR COMMERCIAL RESIDENTIAL RI SINGLE. FAMILY RESDENCE SECTIONAL DISTRICT MAP: 14-5-10 e CITY OF SANTA ANA, CALIFORNIA PROPOSED SECTIONAL DISTRICT MAP EXHIBIT 6 75A-17 75A-18 RESOLUTION NO. 2017-XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING GENERAL PLAN AMENDMENT NO. 2016-03 FOR THE PROPERTY LOCATED AT 415 AND 423 SOUTH RAITT STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Parks, Recreation and Community Services Agency ("Applicant") is requesting approval of General Plan Amendment No. 2016-03 to amend the General Plan land use designation of City -owned properties located at 415 and 423 South Raitt Street from Low Density Residential (IR-7) to Open Space (0) and to update text portions of the City's Land Use Element to reflect this change in order to facilitate the construction of a future park. B. On September 30, 2016, pursuant to Senate Bill 18, the City mailed consultation letters to all tribes listed on the Native American Heritage Commission (NAHC) Tribal Consultation List and were given 90 days or until January 3, 2017 to consult with the City, The City consulted with three local tribes. C. The Planning Commission of the City of Santa Ana held a duly noticed public hearing on January 9, 2017. The Planning Commission recommended a continuance to provide additional information and that representatives from CDA & PRCSA be present. On January 23, 2017, the Planning Commission of the City of Santa Ana held a duly noticed hearing and voted to recommend that the City Council adopt a resolution approving General Plan Amendment No. 2016-03. D. On February 21, 2017, the City Council of the City of Santa Ana held a duly noticed public hearing to consider all testimony, written and oral, related to General Plan Amendment No. 2016-03, at which time all persons wishing to testify were heard, the project was fully considered, and all other legal prerequisites to the adoption of this Resolution occurred. E. General Plan Amendment No. 2016-03 has been filed to amend the General Plan to change the land use designation from Low Density Residential (LR- 7) to Open Space (0). The existing General Plan land use designation for the project area is Low Density Residential (IR-7), which allows residential developments of up to seven dwelling units per acre. In order to facilitate the future construction of a park, this land use designation needs to be changed to Open Space (0), which allows for the Exhibit B 75A-19 construction of parks, water channels, cemeteries and other open space uses. 2. The creation of additional public open space or park area implements the City's Open Space, Parks and Recreation Element Goal 1 of providing sufficient open space to meet the recreational and aesthetic needs of the community. Furthermore the City's Land Use Element Goal 1 promotes for a balance of land uses to address basic community needs and Policy 1.7 calls for the support of open space In under -served areas, such as the project site. The change to an Open Space land use designation will provide an additional 45,911 square feet or 1.1 acres towards public parkland; assisting the City towards achieving its goal of a minimum two acres of public parkland per 1,000 resident population. F. The City Council has weighed and balanced the General Plan's policies, both new and old, and has determined that based upon this balancing that General Plan Amendment No. 2016-03 is consistent with the purpose of the general plan. Section 2. The City Council has reviewed and considered the information contained in the CEQA analysis prepared with respect to this project. The City Council has, as a result of its consideration of the record as a whole and the evidence presented at the hearing on this matter, determined that, as required pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines, General Rule Exemption No. 2016-26 meets all requirements of CEQA. Section 3. The City Council of the City of Santa Ana after conducting the public hearing hereby approves General Plan Amendment No. 2016-03. The amendments to the Land Use Element are attached hereto as Exhibit "A" and incorporated herein by this reference as though fully set forth herein. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Council Action dated February 21, 2017, and exhibits attached hereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. Section 4. This Resolution shall not be effective unless and until Ordinance No. NS- (AA No. 2016-03) 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 do not go into effect for any reason, then this resolution shall be null and void and have no further force and effect. Section 5. 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 6. This decision rendered by the City Council of the City of Santa Ana is final and is subject to judicial review pursuant to California Code of Civil Procedure 75A-20 section 1094.6. The Planning and Building Agency shall give direct notice to the Applicant of the City Council's decisions and these findings. ADOPTED this 21st day of February, 2017. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: �z �.,(- Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY 1, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2017-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on 12017. Date: Clerk of the Council City of Santa Ana 75A-21 City of Santa a General Plan Land Use Element 1998 City of Santa ,Ana Planning Division (P Adopted February 2, 1998 (Reformafted January 2010) The following is a. chronology of the approved general plan amcadments that have been incorporated into this docmncnt since the comprehensive update of the General Plan Land Use Elernent adopted by the Saxon, Ana City Council February 2, 1998 (GPA 1997- 05): GPA 201643(Fabrary 21,2017) GPA 200703(May 16, 2009) GPA 2016 02 (May 17, 2016) GPA 2008-01(May 5, 20081 GPA 2016.01( April 19, 2010) GPA 2004.03 (February 2, 2009) GPA 2015-03(February 2, 2016) GPA 2007-02 (,June 18, 2007) GPA 2014-02 (October 21, 2014) GPA 2007-01(Mamh 19, 2007) GPA 20141(June 3. 2014) GPA 2006-01(October 2, 2006) GPA 2011-03 (March 19, 2012) GPA 2005-01(December 5. 2005) GPA 2011-02(June 6, 2011) GPA 2005 02 (October 17, 2005) GPA 2010.01(June 7, 2010) GP.4 M04,01 (April 5, 2005, as passed by GPA 2008 02 (July 20, 20091 the voters of Saran Ano) GPA 2004-04 (July 19. 2004) GPA 2004.06 (July 6, 1004) GPA2003 02 (June 16, 20031 GPAZ03.01 (Fobram 18, 2003) GPA 2002-01 (September 3, 2002) GPA 2002-03 (August 19, 2002) GPA 2001-03 (Febmary 19, 2002) GPA 2001.02 (January 7. 2002) EXHIbi i A 75A-22 GPA 20M 09 (May 7, 2001) GPA 2W) 08 (February 5, 2001) GPA 20D9-03 (December4, 200@ GPA 2WGD2 (November20, 2000) GPA 1999.D2(Octobar 18. 1909) GPA 1999-01(August 16, 1999) GPA 1908-04(October 5.1998) GPA 1998-05 (September 21, 19981 GPA 1%8-01(May 4,1998) c d y o ff c a i 75A-23 e=mom . i | ® !'a y . . - §EM® ` all �����2���� _�w� ■ y . ! I 75A- 4 LAND USE ELEMENT Residenlial The Land Use Plan provides for three distinct residential land use designations. Residential development is also permitted in two other designations: District Center and Urban Neighborhood. The Santa Ana Land Use Plan Inclucles the Following residential land use designations: The Low Density Residential (LR-7) designation applies to those areas of the City which are developed with lower density residential land uses. The allowable maximum development intensity is 7 units per acre. Development in this category is characterized primarily by single-family homes. This designation applies to a large proportion of the City (6,458.3 acres) representing 47 percent of the City's total land area. The Low -Medium Density Residential (LI4IR-11) designation applies to those sections of the City which are developed with residential uses at permitted densities of up to 11 Units per acre. The land area included in this - designation is approximately 420.6 acres. The great majority of the land designated as Low -Medium Density Residential is located in the westerly portion of the City, north and south of First Street. properties with this designation are typically characterized by mobile home parks, a mixture of duplexes and single family residences, or small lot subdivisions. The Medium Density Residential (MR-15) designation applies to those sections of the City which are developed with residential uses at densities of up to 15 units per acre. Development in this designation is characterized by duplexes, apartments, or a combination of both. A total of 370.8 acres is designated as Medium Density Residential. The designation applies to areas located in the vicinity of downtown, areas north and south of MacArthur Boulevard, and in other areas where there are established multiple-Ctmily development projects. CITY OF SAN(A ANA GFNEVAt PLAN A.IB 75A-25 LAND USE ELEMENT" The intensity standard for the Urban Neighborhood ranges from a floor area ration of 0.5 to 3.0; with residential density based on a combination of floor area ratio and zoning development standards. A total of' 276 acres of land in the City are designated Urban Neighborhood. Industrial The Industrial designation applies to those areas developed with manufacturing and industrial uses. The designation applies to areas which are predominantly industrial is character, and includes those industrial districts in the southwestern, south central and southeastern sections of the City A total of2,152.8 acres ofland in the City is designated as Industrial. The maximum floor area ratio for this designation is 0.45. The industrial districts of the City are vital to its economic health. These areas provide employment opportunities for local residents, and generate municipal revenues for continued economic development. As one of the County's oldest cities, Santa Ana has long been an industrial centerfor the region. The City's goal is to maintain this strong industrial base by setting land use policies which preclude the intrusion of less intensive commercial or residential uses. Typical uses found in this district include the following: Light and heavy product manufacturing and assembly. Commercial uses which are ancillary to industrial uses in the district. Institutional The Institutional designation includes the Civic Center, other governmental facilities, City facilities and public institutions such as schools, etc. Only public properties ofapproxirnately five acres or morcare designated as Institutional. The maximum applicable floor area ratio standard for this designation is 0.5. The 05 FAR is used as a guideline since most development in this designation are State, federal, and local governmental facilities that are notsubjectto local development regulations. A total of 796.3 acres of land is included in this designation. Open Space The Open Space designation is applied to parks, water channels, cemeteries and other open space uses. A total of 1,015.8 acres are included in this land use designation. Ofthis total, 358 acres ofpublic parkland is included in this land use designation. A-P 4 CITY Or SANTA ANA GENERAL PLAN 75A-26 Use Acres LAND USE ELEMENT Table AA Low Density Residential LR-7 6,459.0 7 du/ac - 45,213 du Low Medium Density Residential LMR-11 420.6 11 doff e : 4,627 du Medium Density Residential MR-15 367.6 15 du/ac 5,514 do Subtotal r :. 7.2472: 95736 du ', 53,354 du District Center Oter"FAR 1}lac 11,955,583 0 2.0 3,017 do 23 764,534 sflFF 3,017 duo _ . _ { , __ ... -FAR Heh Page DC 1&8 1.7 54,090 of 221 do 54,696 sF 1,221 du T..._ Downtown DC ;__. .._- _. 62.5 FAR 3.0 2657824 sf ___I ...__. f ..._.__.._. t661 tlu 2,057,824 at 1,661 du Metro East DC 98.3 FAR 3.0 3,245,185 at 5 551 do� 3,245,185 of 5,551 du Transit Village DO -.- _ ...— - 51.4 FAR 5.0 402,864 at -- --- 2 791 du 402,864 sfl 2,761 or rNei FAR SO 1 { --- 2,029 du. 1,836,155 s 2 029 du Urban Neighborhood g L UN I i— 276.0 FAR 0.5 3.0 656,076 of 490E dui E56,076 sd 4,908 du 941.5 20,407,950 at 21,148 do r 32,216,901 sf 21,148 du (�.3 i$Subtotal Professional & Admin, Office PAO 614.2 FAR 0.5.1.E : 13,376,406 af', ! 26,752,809 at General Commercial GC '.. 6834 FAR 9.5-1.0 19240,443 sf': 38,480,887sf': One Broadway Plaza District Ctr~ OBPOC ": L3 : FAR 2.9 : 543193 at 543,193 at Subtotal 1501.09 33,160,041 sr 65,776,889 at Industrial IND 2,152.8: FAR 0.45 42,199,991 at 42J99,991 of j tr .iWaS -0. ,5dsw4'.�i Z'eJfcv.." Institutional° INS : 796.4 FAR 0.2-0.5 6,937,758 at 17,344,394 at Open space OS 1,015.8 . FAR 0.2 8,849,650 at 8,849,650 at Subtotal 1,012.1 15,787,407 at - 26,104,044 at ' Effective capacity for nun -residential development assumes development possible under the lower range of FAR Intensity standards wldl the exception brain Metro East District Center, Transit Village District Cantor, Downtown District Center, Heritage District Center, and Urban Neighborhood areas. The Harbor Corridor District Center, Metro East District Canter, Transit Village Under Center, Downtown District Center, and Urban Plaigblmrhood areas allow a range of Intansity for mixture of residential and non-residential development based on the zoning development standards. Residential efleetive capacity was calculated by adding the 21,148 units possible in the District Center and Urban Neighborhood with the existing 74,588 (Census 2000) housing unils. t Land use designation permits both residential and non-residential development. Build -out assumes 90°% of land area will be developed as commercial and 101Y will be developed as residential; with the exception of Town and Country Manor project intended for continuum of care and housing seniors. Land use designation permits high intensity office development with ancillary retail use. This table has been revised fo correspond rath the GIS Land Use Map illustrated in Exhibit 2. CITY OF SANTA ANA Gt7NERAI. PLAN A3'i 75A-27 75A-28 LS 1.9.17 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AMENDMENT APPLICATION NO. 2016-03 REZONING PROPERTY LOCATED AT 415 AND 423 SOUTH RAITT STREET FROM SINGLE-FAMILY RESIDENTIAL (R-1) TO OPEN SPACE LAND (0) THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana does hereby find, determine and declare as follows: A. The Parks, Recreation and Community Services Agency ("Applicant") is requesting approval of Amendment Application No. 2016-03 to change the zoning district designation of certain real property located at 415 and 423 South Raitt Street from Single -Family Residential (R- 1) to Open Space Land (0) to allow the construction of a future park. B. On September 30, 2016, pursuant to Senate Bill 18, the City mailed consultation letters to all tribes listed on the Native American Heritage Commission (NAHC) Tribal Consultation List and were given 90 days or until January 3, 2017 to consult with the City. The City consulted with three local tribes. C. The Planning Commission of the City of Santa Ana held a duly noticed public hearing on January 9, 2017. The Planning Commission recommended a continuance to provide additional information and that representatives from CDA & PRCSA be present. The Planning Commission of the City of Santa Ana held a duly noticed public hearing on January 23, 2017, on Amendment Application No. 2016-03 and recommended that the City Council adopt an ordinance approving Amendment Application No. 2016-03, which is consistent with the General Plan, as amended by General Plan Amendment No. 2016-03. D. This City Council, prior to taking action on this ordinance, held a duly noticed public hearing on February 21, 2017, E. The City Council also adopts as findings all facts presented in the Request for Council Action dated February 21, 2017 accompanying this matter. Exhibit C 75A-29 F. For these reasons, and each of them, Amendment Application No. 2016-03 is hereby found and determined to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare. Section 2. The City Council has reviewed and considered the information contained in the CEQA analysis prepared with respect to this project. The City Council has, as a result of its consideration of the record as a whole and the evidence presented at the hearing on this matter, determined that, as required pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines, General Rule Exemption No. 2016-26 meets all requirements of CEQA. Section 3. The real property located at 415 and 423 South Raitt Street in Santa Ana is hereby reclassified from Single -Family Residential (R-1) to Open Space Land (0). An amended Sectional District Map, showing the above described change in use district designation, is hereby approved and attached hereto as Exhibit A and incorporated by this reference as though fully set forth herein, Section 4. This ordinance shall not be effective unless and until Resolution No. 2017- (General Plan Amendment No. 2016-03) is adopted and becomes effective. If said resolution and ordinance are for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this ordinance shall be null and void and have no further force and effect. Section 5. 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 21st day of February, 2017. Miguel A. Pulido Mayor 75A-30 APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Mztl c Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on , 2017, and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75A-31 EXHIBIT A SECTIONAL DISTRICT MAP tr[�=ti 15T ST ST gim- f ti im tf+ L.. � R. ♦ice � 4• f 01 G. a ' , : �••• P, N, X, V 41 � P. .tea. � ��.s i• V a, P 5 Y b tl. .1� � • _ a, E � e 1 PT Carey, f � • =■i� e r _ a, ADDENAV fl, 0.r... .uai�au 4t a f � .#�i•_ �xxa.. a, _ y� "' � n. w.+,wse Y f ! " •� ■t im— C1 Coff..L yeomne.l GC Goaemmert Cerer Re R�s:de+eai Estffie ■ Ct-MD Conmuey Conmretwl-tAyeum Dr m Ml "mm"al SD spmic Derelopr, C2 Gea•ral C�al Mi2 i*e hdustrial SP S�6c Ran G PBmed Shopping Carrier 0 cpan^apace N Tr tVLVe CS Arterial Com mal P Pmimsiony VC 4hban Carter CDR ConSdor Ri UNI ldban Ne*bwhm I CA Com iM Resi mil R2 Twq FamiyRe6 me Loc Lhban NwgNoortgod2 C-SM s0,1,14zns".t Cam.1D.emlct R3 Mftf1 Fa IyResidence 500 ei Feet 75A-32 gy Y February 21, 2017 City Council Meeting Correspondence 75A. Date of Sender/Representative Agency Corresp. In opposition of item: 02/14/2017 Vicki and Michael Petez Ngentlas12017 Agendas)Exhibits-Conespondence2017� Exhibits 2017-02-27 Correspondence 75 . 75A-34 7017 FEB 16 PM 4, 40 Tuesday, February 14, 2017 CITY OF SA14TA ANA CLERKS OF COUNCIL Maria Huizar, Clerk of the Council City of Santa Ana 20 Civic Center Plaza, P.O. Box 1988 Santa Ana, CA 92702 RE: Notice of Public Hearing -Proposed Zoning of Parcel Land 415 & 423 Raitt Streets I am writing this letter because I will be unable to attend the hearing on 2/21/2017 @ 5:45 pm. My husband and I currently live across the street from this parcel land and we are totally against the proposal of turning it to a park due to the extreme limited parking in the area. Currently, we are experiencing a high volume of cars parking directly in front of our house, with three cars squeezing close together or around the curb, which is a parking violation. I have notified the city several times about it and nothing has been done, such as parking enforcement to issue parking citations. When they park in front of both of our properties, they will sometimes leave trash on our front yard, which is totally uncalled for because we have to clean it up. If this park were to be proposed and taken in effect, the parking would become terrible. Also, I had suggested parking permits to limit the number of people parking in this area. My neighbor next door is just as frustrated with the parking in the area because he cannot park directly in front of his property too. Please take this letter into consideration ASAP. Thank you. Vickie and Michael Perez c/o James W. Smith (010-052-27) 1726 West Myrtle St. Santa Ana, CA 92703 CC: Mayor Miguel A. Pulido 75A-35 75A-36 REQUEST FOR COUNCIL/ HOUSING AUTHORITY ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: 071 CITY OF SANTA ANA CONDITIONAL LOAN AGREEMENT AND HOUSING SUCCESSOR AGENCY LOAN AGREEMENT WITH AMCAL MULTI -HOUSING, INC. FOR THE FIRST STREET APARTMENTS PROJECT; APPROPRIATION ADJUSTMENTS FOR THE LOAN AGREEMENTS {STRATEGIC PLAN NO. 5, 3C} CITY MA AGER EXECUTIVE DIRECTOR RECOMMENDED ACTION CITY COUNCIL ACTION CLERK OF COUNCIL USE ONLY: F-1TWJJ-..T00T01 ® As Recommended F As Amended ❑ Ordinance on 181 Reading Ordinance on 21d Reading ® Implementing Resolution 171 Set Public Hearing For_ CONTINUED TO 03/0AO/7, --U FILE NUMBER 1. Authorize the City Manager and the Clerk of the Council to execute a conditional loan agreement with AMCAL Multi -Housing, Inc. for $2,600,000 in inclusionary housing in -lieu fees anticipated from the Heritage Village OC, LLC, 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, to create 69 units of affordable housing at 1440 East First Street in Santa Ana, subject to non -substantive changes approved by the City Manager and City Attorney. 2. Approve an appropriation adjustment recognizing $2,600,000 inclusionary housing in -lieu fees from Heritage Village OC, LLC for deposit into Inclusionary Housing Fund revenue account no. (41718002-57896) and appropriating same to the Loans and Grants expenditure account no. (41718820-69152) for the $2,600,000 conditional loan agreement with AMCAL Multi - Housing, Inc. 3. Approve an appropriation adjustment recognizing the Housing Successor Agency's fund balance in the amount of $6,195,000 in revenue account no. (60718002-50001) and appropriating same to the Low and Moderate Income Housing Asset Fund's Loan and Grants expenditure account no. (60718830-69152) for the $6,195,000 loan agreement with AMCAL Multi -Housing, Inc. 80A-1 Loan Agreements with AMCAL Multi -Housing, Inc. and Appropriation Adjustments February 7, 2017 Page 2 HOUSING AUTHORITY ACTION 1. Authorize the City Manager/Executive Director to execute a loan agreement with AMCAL Multi -Housing, Inc. for $6,195,000 in Housing Successor Agency funds, to create 69 units of affordable housing at 1440 East First Street in Santa Ana, subject to non -substantive changes approved by the City Manager/Executive Director and City Attorney. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its regular meeting on January 25, 2017, by a vote of 6:0, the Community Redevelopment and Housing Commission approved the recommended actions. DISCUSSION At its regular meeting on December 20, 2016, by a vote of 4:2 (Martinez, Pulido dissented; Benavides absent), the City Council authorized the City Manager to execute a conditional loan commitment letter with AMCAL Multi -Housing, Inc. (AMCAL) for $2,600,000 of inclusionary housing in -lieu fees anticipated from the Heritage Village OC, LLC, 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. The City Council also authorized the City Manager and the City Attorney to draft loan agreements for City Council consideration in an amount not to exceed $2,600,000 for the First Street Apartments Project located at 1440 East First Street (Exhibit 1). This conditional loan agreement for $2,600,000 (Exhibit 2) will allow AMCAL to move forward with the First Street Apartments Project to obtain their necessary low-income housing tax credit financing. AMCAL expects to submit an application for their low-income housing tax credit financing on March 1, 2017 for the first competitive application funding round deadline and approval of this loan agreement will permit AMCAL to submit their application. The conditional loan agreement is contingent on the City's actual receipt of an in -lieu fee payment of $2,600,000 from Heritage Village OC, LLC (Heritage Village) because the Heritage Village requested to allocate the in -lieu fees from their Heritage Village Project to AMCAL and City Council approved the allocation of those funds on April 19, 2016, but the City has not yet received the in -lieu fee payment of $2,600,000. If the City does not receive the in -lieu fee payment of $2,600,000 from the Heritage Village, the City Manager and the Clerk of the Council will not execute the loan agreement with AMCAL. As such AMCAL will be unable to meet their March 1, 2017 deadline to apply for tax credits. Additionally, on December 20, 2016, by a vote of 4:2 (Martinez, Pulido dissented; Benavides absent), the Housing Authority also authorized the City Manager/Executive Director and the City Attorney to draft loan agreements for Housing Authority consideration in an amount not to exceed $6,195,000 for the First Street Apartments Project (Exhibit 3). Project Description AMCAL's project, located at 1440 East First Street in Santa Ana, will provide 69 units of affordable workforce housing. The residential units will be located within six buildings. The rental units (less 80A-2 Loan Agreements with AMCAL Multi -Housing, Inc. and Appropriation Adjustments February 7, 2017 Page 3 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. The unit mix and affordabilitv restrictions are as follows: 30% AMI 369 AMI 40% AMI 46% AMI 60% AMI 60% AMI Unit Size No. Units Proposed Proposed Proposed Proposed Proposed Proposed Total Rent No. Units Rent No. Units Rent No. Units Rent No. Units Rent No. Units Rent Two 29 $ 604 0 0 0 4 $ 1,043 1 $ 1,263 34 Bedroom Three 4 $ 700 0 0 — 0 -- 17 $ 1,207 7 $ 1,461 28 Bedroom Four 1 $ 780 0 -- 0 — 0 -- 0 $ 1,345 5 $ 1,628 6 Bedroom Total 34 21 13 68 1. The one two -bedroom Manager's Unit is not included, 2. Rents are based on the most current 2016 rents published by the Tax Credit Allocation Committee, Utility Allowances are deducted from rents using the following amounts per the Califomia Utility Allowance Calculator (CUAC)', $54 for 2 Bdmt units; $60 for 3 Bdrm units; $68 for 4 Bdrm units. On -site amenities will include a community room and amenity space including tot lots/play areas for children, outdoor seating, 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. The City's inclusionary housing funds will be provided by means of a 55-year City loan carrying a three percent interest rate and payable by residual receipts. The Housing Successor Agency funds will also be provided by means of a 55-year loan carrying a three percent interest rate and payable by residual receipts. 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 Upon actual receipt of the funds, approval of the appropriation adjustment will recognize $2,600,000 in the Inclusionary Housing Fund revenue account no. (41718002-57896) and increase the Inclusionary Housing Fund Loans and Grant account no. (41718820-69152) by the same amount in the FY 2016-17 budget. The $2,600,000 loan amount will be encumbered in FY 2016-17, but anticipated expenditure will most likely occur in FY 2017-18. • I . Loan Agreements with AMCAL Multi -Housing, Inc. and Appropriation Adjustments February 7, 2017 Page 4 Approval of the appropriation adjustment will recognize $6,195,000 in the Low and Moderate Income Housing Asset Fund's revenue account (no. 60718002-50001) and increase the Loan and Grants expenditure account no. (60718830-69152) by the same amount in the FY 2016-17 budget. The $6,195,000 loan amount will be encumbered in FY 2016-17, but anticipated expenditure will most likely occur in FY 2017-18. Robert C C o Aerz---- Deputy City Manager City Manager's Office APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez (� Executive Director Finance and Management Services Agency Exhibits: 1. 1440 East First Street Site Map 2. Inclusionary Housing Funds Loan Agreement 3. 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R1 R1 HR1 vat M2MR1 R1 R1 � RI RI ao M1 R1 111 M1 Mt R4 Al GERE`ALAGR0JLIUPALt CR 0GMMEFDALRESDERIIAL m SINGLE FAMILY FESDEJTIAL -S FARANGMODIFlCATION GC GDM MERTCEJ P2 TV\CFAMILYRESDERCE OSHA C]MIMEFUALSDUTHMAIN Ml LIGHTINDUSRAL w MULTR-EDERSTYMULIIFLE cl CCMMUNITYOCMMMAL M2 HEAWINDUSRRAL FAMILYFESDEJCE Cl-MD CCMM.0JMMESMAUMUS31MDISRRGT MO MIUTARfOPERATONS R4 Sl&1F64NAPARIM9J C2 GEJEALOCMMLROAL 0 OPEN SPACE RE FEIDMJ ALEETATE m CENTFALEJSINE P PF!DF OWL SD SPECHCDEAOPMERT C&A CERTRALF9JSNE35ARFISTMILIAGE POD PLANNED COMMUNITY DEVaOPMERT m =FIGPLAN CA PLANNEJSIOPRNGCEJ Rp FIANNEDFESIDERTIALD�ERT 05 AFM9RALCOMMEFDAL GPA 2016-1 & AA 2016-1 AMCAL FIRST STREET FAMILY APARTMENTS 1440 EAST FIRST STREET — = 500 FffT 1"= 1000 F&T P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT 1 80A-5 EXHIBIT 2 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 Division Manager SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] by and between the CITY OF SANTA ANA, and AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership (1440 East First Street, Santa Ana, California) Dated: February , 2017 80A-7 LOAN AGREEMENT INCLUSIONARY HOUSING PROGRAM THIS LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of February _, 2017, is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation ("City"), and AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") with reference to the following: RECITALS: A. The City's Housing Opportunity Ordinance ("Ordinance") was originally adopted by the City Council on November 28, 2011 (Ordinance No. NS-2825), and is codified in Article XVIII.I of the Santa Ana Municipal Code ("SAMC"). The Ordinance was amended by the City Council on September 1, 2015 (Ordinance No. NS-2881), and on October 6, 2015 (Ordinance No. NS-2885). The Ordinance established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to SAMC section 41-1904(c), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the Inclusionary Housing Fund, as defined by SAMC section 41-1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41-1909. B. Developer requested financial assistance in connection with the proposed development of a sixty-nine (69) unit affordable workforce housing complex ("Project") to be located at 1440 East First Street, Santa Ana, California, and legally described within Exhibit A attached hereto and incorporated herein ("Property"). The residential units will be located within six (6) 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 (6) four -bedroom units, twenty-eight (28) three -bedroom units, and thirty-five (35) two -bedroom units (one being a manager's unit). Eight (8) 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 seating, BBQ's, 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. Developer will engage a qualified non-profit organization approved by the City (of which LifeSTEPS is hereby approved by the City) 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. C. The City reviewed Developer's request for assistance and at the City Council meeting on December 20, 2016, the City Council authorized and approved issuance of a conditional, pre -commitment letter evidencing the preliminary award of $2,600,000 of funds to the Project ("Inclusionary Loan"), to be funded exclusively from inclusionary housing in -lieu fee 2 payments made pursuant to the Housing Opportunity Ordinance by the developer of that certain mixed -use development to be located at 2001 East Dyer Road, Santa Ana, California. D. The amount of the Inclusionary Loan was determined based upon the City's review of the Developer's request for the receipt of the Inclusionary Loan and the development proforma and projected cash flows for the Project submitted by the Developer to the City as of March 18, 2016 ("Proforma"). The City Manager has authority to approve revised development proformas and projected cash flows for the Project; provided, however, that the Inclusionary Loan is not materially increased or extended. E. In furtherance of the Inclusionary Housing Program, Developer has applied to the City for a loan with which to: 1. Provide deeper affordability and construct the improvements to the Property, and 2. Thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. F. The City, on certain terms and conditions, desires to make such Inclusionary Loan to Developer in order to make possible the construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. G. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City and Developer agree as follows: DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and/or as set forth in this Article 1. "Affordable Housing" means the total housing costs paid by a qualifying household, which shall not exceed the fraction of gross income specified, as follows, in accordance with Sections 50052.5 and 50053 of the Health & Safety Code: Very Low -Income Households. Thirty (30) percent of the income of a household earning fifty (50) percent of the Orange County median income adjusted for family size appropriate for the unit. Low -Income Households. Thirty (30) percent of the income of a household earning seventy (70) percent of the Orange County median income for for -sale units, and thirty (30) percent of the income of a household earning sixty (60) percent of the Orange F46111mo County median income for rental units, adjusted in either case for family size appropriate for the unit. In the event of a conflict between the fractions specified in this definition and those found in Sections 50052.5 and 50053 of the Health & Safety Code, the fractions specified by State law shall control. "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the City, attached hereto and incorporated herein as Exhibit B. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the California Tax Credit Allocation Committee (TCAC), or by the State of California, as applicable. "Building Permit" means the building permit(s) issued by City and required for the construction. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. corporation. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Inclusionary Loan Agreement and Inclusionary Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Developer" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Developer's Representative" shall mean an officer of the General Partner of Developer or his/her designee. 4 Foorlymul "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. "Event of Default" has the meaning set forth in Section 20.1. "General Partner" means AMCAL Multi -Housing Two LLC, a California limited liability company. "Governmental Authority" means any governmental or quasi -governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "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 s�Mc., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. Hazardous Material shall not include (i) construction products, household cleaners and office materials of the type and quantity ordinarily used in the normal construction, operation and maintenance of properties similar to the Project or (ii) small amounts of household mold to the extent promptly remediated upon discovery. "Housing Opportunity Ordinance" means the Ordinance originally adopted by the City Council on November 28, 2011 (Ordinance No. NS-2825), and as amended by the City Council on September 1, 2015 (Ordinance No. NS-2881), and on October 6, 2015 (Ordinance No. NS-2885), which is codified in Article XVIII.I, Section 41-1900, et seq. of the Santa Ana Municipal Code. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "HCD" means the California Department of Housing and Community Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements, as required through the City of Santa Ana Planning and Building Agency entitlement process. "Inclusionary Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit C, to be executed by Developer pursuant to Section 5.B.1 in order to secure the Inclusionary Loan Note. 5 80A-11 "Inclusionary Housing Fund" means the fund created by the City of Santa Ana in which all fees collected in compliance with the Housing Opportunity Ordinance shall be deposited, as defined by Santa Ana Municipal Code section 41-1901 and applied by Santa Ana Municipal Code section 41-1909. "Inclusionary Promissory Note" means that certain promissory note for Inclusionary Funds in the original principal amount of $2,600,000 in the form attached hereto as Exhibit D, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the Inclusionary Loan through residual receipts as further described in the Inclusionary Promissory Note. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non -recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 14.5. "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). "Inclusionary Loan Documents" or "Loan Documents" means, collectively, this Agreement, the hnclusionary Promissory Note, the Inclusionary Deed of Trust, and the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the City reasonably requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HCD. Also may be referred to interchangeably in the Inclusionary Loan Documents as "Area Median Income" or "AMP. 6 80A-12 "Partnership Agreement" means the Agreement of Limited Partnership of AMCAL 1440 SANTA ANA FUND, L.P., dated as of September 1, 2015 attached herein as Exhibit H. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means the Senior Loan Deed(s) of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Developer pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached hereto as Exhibit E, as modified from time to time in accordance with this Agreement. "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 1440 East First Street in the City of Santa Ana, and is more fully described in the "Legal Description' of the Property attached hereto as Exhibit A and incorporated herein by reference. "Scope of Work/Schedule of Performance" means the detailed statement of the work to be performed by Developer on and to the Property pursuant to this Agreement, along with the Schedule of Performance setting forth timeframes for certain tasks, which document is attached hereto as Exhibit F. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender concurrent to the Inclusionary Loan for payment of a portion of the acquisition and construction costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the first deed(s) of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" means the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. 1.2 Singular and Plural Terms. Any defined term used in the plural in this Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. [RESERVED] 3. SCOPE OF WORK/PROJECT BUDGET A "Scope of Work" and "Schedule of Performance" for the Property is attached hereto as Exhibit F. Any material change to the Scope of Work/Schedule of Performance requested by the Developer shall be subject to the prior written approval of the City Project Manager. The Scope of Work/Schedule sets forth the construction work that shall be performed on the Property and timeframes for approvals and such work. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit E ("Project Budget'). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the City Project Manager. 4. [RESERVED] 5. INCLUSIONARY LOAN: The Inclusionary Loan shall be evidenced by the Inclusionary Promissory Note in the form attached hereto as Exhibit D. The Inclusionary Loan shall be secured by the Inclusionary Deed of Trust in the form attached hereto as Exhibit C. The terms and conditions of the Inclusionary Loan are as set forth in the Inclusionary Promissory Note. The term of affordability for the Project is fifty-five (55) years from the receipt of Certificate of Occupancy for the Project, or repayment of the Inclusionary Loan, whichever is longer. 5.1. Inclusionary Housing Funds: A. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan to Developer from Inclusionary Housing funds in the principal amount of up to $2,600,000.00 for the construction and other costs of the Project. The City shall notify the Developer within ten (10) days of the receipt of the In -Lieu Fee. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent. City's obligation to disburse the loan is subject to the satisfaction of the following conditions precedent: (a) 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 In -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 shall have no obligation to fund the Inclusionary Loan unless the In -Lieu Fee has been received by the City. (b) City Council. Review and approval of the Inclusionary Loan Documents by the City Council. (c) Environmental Review. Compliance with and completion of environmental review of the Project pursuant to the California Environmental Quality Act ("CEQA") and approval thereof. (d) Affordability Restrictions. Sixty-eight (68) of the sixty-nine (69) "Housing Units" at the Project shall and will be restricted to "Affordable Rent" as defined by the California Tax Credit Allocation Committee (TCAC) Regulations for a period not less than fifty- five (55) years pursuant to conditions, covenants and restrictions recorded against the Project in the Official Records, County of Orange, California. Thirty-four (34) of the sixty-eight (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 reasonably determine that it is necessary for a lesser number of Housing Units at the Project to be restricted to households earning 30% or less of AMI 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. (e) Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signature(s) aclmowledged where necessary, each of the following documents: (i) this Inclusionary Loan Agreement; (ii) the Inclusionary Promissory Note ($2,600,000); (iii) the hnclusionary Deed of Trust; and, (iv) the Affordability Restrictions on Transfer of Property. (f) Title Insurance. City shall have received an American Land Title Association (ALTA) Extended (LP-10) Loan Policy (6-17-06), or evidence of a commitment therefore satisfactory to City, issued by Commonwealth Land Title Insurance Company and in form and substance satisfactory to City, together with all endorsements and binders required, naming City as the insured, in a policy amount of not less than the total Inclusionary Loan Amount, showing Developer as the fee owner of the Property and insuring the Inclusionary Deed of Trust to be a valid priority lien on the Property. This Agreement, the Inclusionary Promissory Note, and the Inclusionary Deed of Trust shall all be subordinate to the Senior Loan Note and Senior Loan Deed of Trust. (g) Affordability Restrictions on Transfer of Property. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit B, the Affordability Restrictions on Transfer of Property pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, sanitary and affordable rental housing pursuant to the affordability requirements of California Health and Safety Code ("H&S") sections 50052.5 and 33334.3, as applicable. The City's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated. (h) Documents Recorded. This Loan Agreement, the Inclusionary Deed of Trust, and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (i) 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"). 0) 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. (k) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct in all material respects as of the Close of Escrow as though made on and as of that date, and if requested by the City Project Manager, City shall have received a certificate to that effect signed by Developer's Representative. (1) No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the City Project Manager, City shall have received a certificate to that effect signed by Developer's Representative. (m) The City's obligation to provide the Inclusionary Loan is and shall remain subject to all covenants, conditions, and restrictions set forth in this 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. 6.2 Disbursement Procedures for Loan. The hnclusionary Loan proceeds shall be disbursed through Escrow to finance the acquisition, development and construction of the Project (as evidenced in Exhibit E). The Inclusionary Loan proceeds shall not be used for any purpose other than for acquisition and predevelopment and construction related costs, including Developer fee and soft costs related to the development of the Project (costs all subject to City's prior review). 6.3 First Disbursement. City's obligation to make the first disbursement of the Loan is subject to satisfaction of the following conditions precedent: (a) All grading permits shall have been issued or 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 the final budget consistent with the approved Proforma (or as otherwise approved by the City). (c) 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 this Loan Agreement. (d) Developer shall have provided construction security in favor of the City, which may include a completion guarantee from AMCAL Multi -Housing, hie. and/or a letter of credit and/or performance and 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 the City. (e) Developer shall submit and obtain the Executive Director of the Community Development Agency's approval of the construction contract, the identity and qualifications of the General Contractor, 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. 11 80A-17 6.4 Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied (subject to applicable notice and cure rights), and (b) City is not in default under this Agreement, City may terminate this Agreement without any further liability on its part by giving written notice of termination to Developer. Upon the giving of such notice, all principal, interest and other amounts owing under the specified due date. 6.5 Any Disbursement. City's obligation to make any disbursement of the Loan, including the first and final disbursements, is subject to the satisfaction of the following conditions precedent: (a) Satisfactory Progress. The City Project Manager shall be satisfied that, based on his/her own inspections or other reliable information, the construction is progressing satisfactorily in conformance with all applicable laws and other requirements (including the City's Inclusionary Housing guidelines). (b) Condition of Title. Either (i) the City Project Manager reasonably believes that no event has occurred since the Close of Escrow that would give rise to a colorable claim against the Property (e.g., a mechanic's lien) superior to the claim of City against the Property with respect to the subject disbursement, or if such claim is made, then City Project Manager shall receive satisfactory evidence that such claim has been bonded over until its resolution; or (ii) City must have received, at Developer's expense but payable out of the Loan proceeds from the title insurer who issued City's LP-10 Title Policy, all endorsements thereto then reasonably required by City (including, without limitation, CLTA Form 122 -- priority of advance endorsements). (c) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other City Loan Documents shall be correct in all material respects as of the date of the disbursement as though made on and as of that date. (d) No Default. No Event of Default by Developer shall remain uncured (unless, to the extent permitted under this Agreement, Developer is diligently taking action to cure such default) and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer. 6.6 Final Disbursement. City's obligation to disburse that portion of the Loan funds retained pursuant to Section 6.12 is subject to the satisfaction of the following additional conditions precedent: (a) Construction complete. The construction of the Project shall be complete. (b) Certificate of Occupancy Issued. Any portion of the construction work requiring inspection or certification by any Governmental Authority shall have been inspected and certified as complete. Developer shall request that the Building Department issue a Certificate of Occupancy, a copy of which shall be delivered to the City Project Manager, in order for final disbursement to occur. 12 80A-18 (c) Lien Free. At least one of the following shall have occurred: (i) Thirty-five (35) days shall have passed since the recording of a valid notice of completion for the construction, and no mechanic's or materialman's lien shall be outstanding; or (ii) Ninety-five (95) days shall have passed since actual completion of the construction, and no mechanic's or materialman's lien shall be outstanding, or Developer shall have bonded over any such lien to City's reasonable satisfaction. 6.7 Waiver of Conditions. The conditions set forth pertaining to City's obligation to make disbursements of the Loan proceeds are for City's benefit only and the City Project Manager may waive all or any part of such rights by written notice to Developer. 6.8 Disbursement Requests. The Loan proceeds shall be disbursed on a line -item by line -item basis in accordance with the Project Budget and subject to the conditions in this section. In no event shall City have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Project Budget. Disbursements shall be made only upon Developer's written request in the form of a Disbursement Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as City may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to City, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b) all other documents and information reasonably required by City. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by City of proceeds of the loan, Developer shall deliver to City a draw request ("Draw Request"), and all required supporting information as set forth in the Inclusionary Loan Documents or as otherwise reasonably required by City in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City shall notify the Developer of approval or disapproval of each Draw Request within five (5) Business Days after receipt of the Draw Request, using the City's "Disbursement/Change Order Approval Notice". City shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 6.9 Manner of Disbursement. City may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by City. 6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by City or Developer to be required to complete all matters included in 13 any line item in the Project Budget exceeds the amount allocated to that line item in the Project Budget, (b) Project costs for any matters not covered by a specific line item have been or will be incurred, or (e) the undisbursed portion of the Loan proceeds and all other approved financing sources are or may be insufficient to pay all construction of the Project that may be payable under the Inclusionary Loan Documents or otherwise in connection with the construction, Developer shall, within ten (10) days after it receives written notice thereof from City of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to City that Developer has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost") with fiords from a source other than the Inclusionary Loan; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the City Project Manager's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non -interest bearing account (the "Overrun Account") with City from which withdrawals may be made only with the consent of the City Project Manager but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Project Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. City shall have no obligation to make further disbursements until Developer has paid or otherwise provided for the overrun as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of any remaining Loan proceeds in the manner described in subsection 9.3(c). 6.11 Cost Savings. Upon completion of and disbursement for all matters covered by any line items in the Project Budget, any remaining undisbursed amounts allocated to that line item shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 6.12 Retainage. City will withhold a Retainage of 10% from each Disbursement for each of the Hard Cost line items of the Project Cost Breakdown (and other line items thereof designated for withholding of retainage) until all conditions to the final Disbursement of Hard Costs have been satisfied. In lieu of City's withholding Retainage, Developer can by written notice to City elect not to draw any overhead or profit as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. City shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to City proving payment in full, land acquisition costs or for soft costs. 6.13 Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as determined by 14 80A-20 the City Project Manager) for "punch -list" items. Such holdback will be released when all punch - list items have been completed to the satisfaction of City. 6.14 Waiver of Disbursement Conditions. Unless City otherwise agrees in writing, the making by City of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made, and such condition shall be conditioned to all further disbursements until fulfilled. 6.15 Modification of Disbursement Conditions and Procedures. The City Project Manager shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the contract for construction. 6.16 Other Terms and Conditions of Loan. A. The Note shall become immediately due and payable, in the event of any of the following: (1) Failure to be awarded tax credits within two (2) years of the recording date and failure to complete the Project within four (4) years of the recording date; (2) Violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; or, (3) An Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 6.17 Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROJECT 7.1 Use Covenants and Restrictions. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all of the rental units on the Property available to extremely low, very low and low income households at rents affordable to such households for fifty-five (55) years (except for one (1) unit for the onsite manager). The Project shall consist of sixty-nine (69) residential units. Enforceability of restrictions on the sixty-eight (68) units shall be enforced until the date that is fifty-five (55) years after the date on which the Certificate of Occupancy is issued. 7.2 Affordability Levels/Unit Mix: The proposed unit mix and levels of affordability are as follows: 15 80A-21 Bedroom Size 30% AMI 40% AMI 50% AMI 60% AMI Manager's Unit Total Two Bedroom 29 0 4 1 1 35 Three Bedroom 4 0 17 7 28 Four Bedroom 1 0 0 5 6 Totals 34 0 21 13 1 69 * The affordable rents charged at the Project must comply with the standards set forth by the California Tax Credit Allocation Committee (TCAC). * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The Housing Authority of the City of Santa Ana publishes a utility allowance schedule on an annual basis, provided, however, in lieu of the utility allowance published by the Housing Authority the Developer may elect to use the California Utility Allowance Calculator to the extent allowed by TCAC. 7.3 Rent Increases: On an annual basis, the City shall provide the Developer with the maximum allowable schedule of rents for the Property which shall correspond to the maximum rent increase allowed by TCAC. In no event can Developer charge any tenant more than such amount. 7.4 Maintenance of the Propertv. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the City, unless such condition cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the City may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The City shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Section 17 of this Agreement. 7.5 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, disability, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 8. DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perform any term or provision of this Agreement within the time periods provided herein for such performance constitutes a 16 80A-22 default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting parry shall be entitled to cure the default in accordance with this section. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of written notice of termination to Developer. 8.2 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover economic damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.4 Damages. In the event that the City is liable for damages to Developer, such liability shall not exceed costs incurred by the Developer in the performance of this Agreement and shall not extend to compensation for loss of fixture income, profits or assets. 8.5 Nonrecourse Liabilitv. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached Note and Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the loan evidenced by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 9. GENERAL PROVISIONS AND WARRANTIES As a material inducement to City to enter into this Agreement, Developer represents and warrants as follows: 9.1 Formation, Oualification and Compliance. AMCAL 1440 Santa Ana Fund, L.P. is a California limited partnership. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 17 9.2 Execution and Performance of Inclusionary Loan Documents. 9.2.1 Developer has all requisite authority to execute and perform its obligations under the Inclusionary Loan Documents. 9.2.2 The execution and delivery by Developer of, and the performance by Developer of its obligations tinder, each Loan Document that has been authorized by all necessary action and does not and will not: (a) require any consent or approval not heretofore obtained of any person having any interest in Developer; (b) violate any provision of, or require any consent or approval not heretofore obtained under, any articles of incorporation, by-laws or other governing document applicable to Developer; (c) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the Inclusionary Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (d) to best of its knowledge, violate any provision of any law presently in effect; or (e) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Developer is a party or by which Developer or any of its property is bound. 9.2.3 Developer is not in default, in any respect that is materially adverse to the interests of City under the Inclusionary Loan Documents or that would have any material adverse effect on the financial condition of Developer or the conduct of its business, under any law, contract, lease or other agreement or document described in sub -paragraph (d) or (e) of the previous subsection. 9.2.4 No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Authority is required which has not been previously obtained in connection with: (a) the execution by Developer of, and the performance by Developer of its obligations under, the Inclusionary Loan Documents; and (b) the creation of the liens described in the Inclusionary Loan Documents. 9.3 Financial and Other Information. To the best of Developer's knowledge, all financial information furnished to City by the Developer or any affiliate thereof 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 by the Developer or any affiliate thereof with respect to Developer, in connection with the Loan, 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 Chance. There has been no material adverse change in the condition, financial or otherwise, of Developer since the dates of the latest financial statements furnished to City. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to City in writing. 9.5 Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to 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. To best of its knowledge, Developer is in compliance with all laws relating to the Property and all Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 9.7 Rights of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8 Litication. 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. 19 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 construction/development of the Project. Accordingly, Developer further expressly acknowledges and agrees that this Agreement is a personal right of Developer that is neither negotiable, transferable, nor assignable except as set forth herein. Developer may assign some or all of its rights under the Agreement only with the prior written consent of the City Project Manager (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by a limited partner of Developer to an affiliate, for the inclusion of tax credit investors in the Agreement, or as otherwise provided in the Deed of Trust. 9.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and California state law with venue in Orange County, California. 9.15 Third Parties. This Agreement is made for the sole benefit of Developer and the City and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the City hereunder or arising from any default by Developer, nor shall the City owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the construction of the Property. 9.16 Control of Property. The parties acknowledge that the City has not at anytime participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 10. CONDITIONS FOR CONSTRUCTION 10.1 Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the construction and conversion of the Property. 20 10.2 Commencement and Completion of Construction. The construction of the Project shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by Governmental Authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 10.3 Chance Orders. The contract for construction shall not be modified except pursuant to change orders. All change orders in excess of $10,000: (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; and, (b) Shall be subject to the City Project Manager's prior written approval. 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice and subject to reasonable job site safety rules, City and its agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the construction are stored, (b) the right to inspect all labor performed and materials furnished for the construction, and (c) the right to inspect and copy all documents pertaining to the construction. 10.5 [RESERVED] 10.6 Construction Information. From time to time during the course of the construction, within ten (10) Business Days following City's written demand therefore, Developer shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the construction, itemized as to trade description and item, showing the name of the contractor(s) and/or subcontractor(s), and 'including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Allainst Liens. Developer shall diligently file a valid Notice of Completion upon completion of the construction, diligently file a notice of cessation in the event of a cessation of labor on the construction for a period of thirty (30) days or more, and take all actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the City by any person furnishing labor or materials to the Property, Developer shall immediately give written notice of the same to City and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the same, (b) effect the release thereof by delivering to City a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as City may require to release City from any obligation or liability with respect to such stop notice or claim. 21 80A-27 11. COVENANTS 11.1 [RESERVED] 11.2 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 California Health and Safety Code section 50052.5 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.3 [RESERVED] 11.4 [RESERVED] 11.5 Handicapped Accessibility. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36 in order to make the Project readily accessible to and usable by individuals with disabilities. 11.6 [RESERVED] 11.7 [RESERVED] 11.8 Lead -Based Paint. Developer shall comply with the requirements, as applicable of the Lead -Based Paint Poisoning Prevention Act. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by the City of Santa Ana's adopted affirmative marketing procedures and minority outreach program. 11.10 Equal Opportunity and Fair Housing. Developer shall carry out the construction and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing. Developer must also follow the requirements of California Health and Safety Code section 33435. 11.11 Property Standards. Developer shall cause the Property to meet 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 [RESERVED] 11.13 [RESERVED] 11.14 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this 22 Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the rehabilitation and soft costs of the Project). The amount of each request shall be limited to the amount needed. 11.15 Eligible Costs. Developer shall use Inclusionary Housing Funds to pay costs within the Project Budget attached herewith as Exhibit E. 11.16 Records and Reports. Developer shall maintain and from time to time submit to City such records, reports and information as the City Project Manager may reasonably require in order to meet City record keeping and reporting requirements. 11.17 [RESERVED] 11.18 Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth in all applicable state regulations pertaining to conflict of interest. 11.19 Monitoring. Developer shall allow the City to conduct periodic inspections of each of the assisted units on the Property as required by the Housing Opportunity Ordinance after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 11.20 Recertification of Tenant Income. (a) Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis. At a minimum, every fifth (5th) year, Developer shall require new original income documents to be submitted by tenants. (b) Developer shall allow the City to conduct periodic reviews of tenant files and files relating to affirmative marketing and outreach to insure the Project's compliance with applicable regulations and guidelines. (c) City assisted units continue to qualify as affordable housing despite a temporary non-compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section until the non-compliance is corrected. 11.21 Other Requirements. Developer shall comply with all other applicable requirements of the Housing Opportunity Ordinance, including the following: (a) Onsite Services: The Developer shall provide on -site services that are available to the residents and shall report to the City annually the services provided. 23 (b) Coordination with the WORD Center: The Developer and the Property Manager shall coordinate with the City's WORK Center to provide services and outreach to tenants, as well as provide information on employment during the construction of the Project. (c) Tenant Satisfaction Survey: The Developer shall complete and submit to the City biennial tenant satisfaction surveys of tenants. (d) Rental Inclusionary Housing Manual: The Developer shall also maintain compliance with the City's Inclusionary Housing Manual for Rental Projects. 11.22 Controlling Covenants. If there is a discrepancy between any applicable Local, State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a business -like manner; shall prudently preserve and protect its own as well as the City's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of City's interests under the Inclusionary Loan Documents. Without limiting the generality of the foregoing, and except as otherwise agreed by City in writing from time to time, Developer shall promptly and faithfully perform and observe each of the following provisions: 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. Subject to any property tax abatement available to the Developer, 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 24 80A-30 Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non -governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on City (other than City's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). 12.3.1 Right to Contest. Developer shall not be required to pay any Imposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair the City's interests trader the Inclusionary Loan Documents, and (c) Developer has furnished City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 12.3.2 Evidence of Payment. Upon demand by City from time to time, Developer shall deliver to City, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. 12.3.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City. 12.4 [RESERVED] 12.5 Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account"). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Operating Budget, as it may be revised from time to time with prior City approval. Developer may make withdrawals from this account solely for the payment of project expenses and project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the City. 12.6 Replacement Reserve Account. Developer must establish or cause to be established a segregated replacement reserve depository account ("Replacement Reserve Account") no later than the commencement of the permanent financing period for the Project. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer's Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Project that are reasonably required to preserve the Project. Developer may not withdraw funds 25 80A-31 from the Replacement Reserve Account for any other purpose without the prior written approval of the City. 13. NONDISCRIMINATION COVENANTS 13.1 Obligation to Refrain from Discrimination. Developer covenants and agrees that (a) In Use of Property. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, disability, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. (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 (e) remain effective for the term of the contract (for 55 years). (c) In Employment. In construction on the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, disability, creed, religion, sex, marital status, disability, national origin, or ancestry. (d) In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor for the benefit of City, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the City, Developer has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14.2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the construction of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed 26 80A-32 pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3 Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property. 14.4 Notice of Environmental Matters. Developer shall immediately advise City in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental Law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and its respective officers, directors, employees and agents (collectively the "lndemnitees") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the lndemnitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property other than resulting from the gross negligence or willful misconduct of any Indemnitee. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the Inclusionary Promissory Note or Inclusionary Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 15.1 Existence. The sole member of Developer's managing general partner shall maintain its existence in good standing under the laws of the State of California, and Developer shall provide documentation of such status annually to the City. 15.2 Protection of Lien. Developer shall maintain the lien of the Inclusionary Deed of Trust as a valid third priority deed of trust on the Property and take all actions, and execute and deliver to City all documents, reasonably required by City from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to City, within ten (10) days of Developer's learning thereof, of each of the following: 27 (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Developer or any general partner to liability in excess of $5,000, whether covered by insurance or not; (b) any dispute between Developer and a Governmental Authority relating to the Property, the adverse determination of which might materially affect the Property; (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; (t) any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; (g) the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and/or (h) any material adverse change in the financial condition of Developer. 15.4 Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to City all documents, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Inclusionary Loan Documents; to protect and further the validity, priority and enforceability of the hnclusionary Deed of Trust; to subject to the Deed of Trust any property intended by the terms of any Loan Document(s) to be covered by the Inclusionary Deed of Trust or otherwise to carry out the purposes of the Inclusionary Loan Documents and the transactions contemplated thereunder. 15.5 Annual Financial Statements. Developer shall deliver to City, within one hundred fifty (150) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, (ii) fairly W. present Developer's financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies. Developer shall include in said reports, a document in the "Form of Residual Receipts Report" attached hereto as Exhibit G and incorporated herein. 15.6 Audits and Access to Records. Developer agrees that City or any of their authorized representatives shall have the right of access, upon reasonable notice and during normal business hours, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability or recapture period ends. 15.7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the City every fifth (5"') year beginning January 2023. 16. OTHER COVENANTS While any obligation of Developer under the Inclusionary Note or Inclusionary Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 16.1 Default on Senior Loan. Developer shall not default on any of the Senior Loan documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Sale or Lease of Property. Unless and until Developer has received a Certificate of Completion for the construction from City, Developer shall not sell, lease (other than to tenants meeting the requirements set forth in this Agreement), sublease or otherwise transfer all or any part of the Property or any interest therein without the prior written consent of the City Project Manager, which consent may be withheld in the City Project Manager's reasonable discretion. In connection with the foregoing consent requirements, Developer acknowledges that City relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the construction. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of a General Partner's interest in Developer when made in connection with the exercise by the Developer's limited partner (the "Limited Partner") of its rights upon a default by a General Partner Linder 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 29 FOR (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 one or more of 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 the Limited Partner's interest in the Developer or of an interest in the Limited Partner. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction and upon the request of Developer, or at its own election, the City shall issue a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction. If City declines to furnish a Certificate of Completion after written request from Developer, the City Project Manager shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefore. The statement shall contain a description of the action Developer must take to obtain a Certificate of Completion. If the reason therefore is that the Developer has not completed a minor portion of the construction, City may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with City of a bond or other form of security acceptable to the City Project Manager in the amount of the fair value of the uncompleted work. A Certificate of Completion is not evidence of compliance with or satisfaction of the Inclusionaiy 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. INIDEMNIFICATION 18.1 Nonliability of City. Developer acknowledges and agrees that: (a) The relationship between Developer and the City is and shall remain solely that of Developer and lender. City neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the construction, including matters relating to: (i) the performance of the construction work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress of the construction; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by City in connection with such matters is solely for the protection of City and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the City is not a partner, joint venture, alter -ego, manager, controlling person or other business associate or participant of any kind of Developer and City does not intend to ever assume any such status; (ii) City's activities in connection with the Loan shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and City does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and (iii) City shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and, (d) By accepting or approving anything required to be performed or given to City under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 18.2 Indemnity. Developer shall defend (by counsel reasonably satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the making of the Loan(s); (iii) a claim, demand or cause of action that any person has or asserts against Developer; (iv) any act or omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property; or (vi) the ownership, occupancy or use of the Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify City with respect to the consequences of any act of gross negligence or willful misconduct of City. Developer's obligations under this Section shall survive the cancellation of the City Promissory Note, release and reconveyance of the City Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. 18.2.1 Notwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result as the repayment of principal and/or interest under the Loan. 18.3 Reimbursement of City. Developer shall reimburse City immediately upon written demand for all costs reasonably incurred by City (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of City) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty 31 80A-37 (20) days after City gives written demand to Developer and shall be secured by the City Deed of Trust. Such reimbursement obligations shall survive the cancellation of the Loan Note, release and reconveyance of the City Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the construction; (b) prior to commencement and following completion of the construction, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (c) upon commencement of the construction and at all times prior to completion of the construction, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonably required by the City from time to time, and in no event less than $1,000,000; and (0 any other insurance reasonably required by City which is available at commercially reasonable rates. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to City. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to City, showing the City as encumbrance. The City shall be named as an additional insured in the policies required under subparagraphs (d) and (e). Certificates of insurance for the above policies (and/or original policies, if required by City) shall be primary and delivered within ten (10) days after demand therefore, and prior to start of any construction work. All policies 32 80A-38 insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co-insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to the City Attorney. 19.2 Citv Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section so long as such modifications are commercially reasonable for an affordable housing development such as the Project . 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 receipt of the Proceeds: (a) Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b) and any undisbursed loan and tax credit proceeds available to the Developer) will be adequate to repair the Improvements and to restore the fair market value of the Property, within a time period reasonably determined by City, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of (i) plans and specifications reasonably satisfactory to City, and (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to City. (b) To the extent that the Proceeds (together with all undisbursed Loan proceeds and any other financing proceeds available to the Developer) are insufficient to accomplish the restoration required above, Developer shall deliver to City funds (the "Shortfall Funds") in the amount of such shortfall, which funds shall be assigned to City as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. 33 (c) Developer shall execute such documents as City reasonably requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by City against any obligations to City that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within one hundred eighty (180) days (unless extended pursuant to Section 19.5) following the date Proceeds are received, the Proceeds shall be applied by City against any obligations to City that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in its sole and absolute discretion. 19.8 Restoration. Nothing in this Section 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation"). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to City shall be paid to Developer or Developer's assignee. City shall have no obligation to take any action in connection with any actual or threatened condemnation or other proceeding. 19.9.1 Notwithstanding the foregoing, as long as the value of City's liens are not impaired, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 34 19.9.2 Notwithstanding the foregoing, during the tax credit compliance period for the Project, as determined under Section 42 of the Internal Revenue Code, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.10 Waiver of Subrogation. Developer hereby waives all rights to recover against the City (or any officer, employee, agent or representative of City) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: (a) Developer fails to make any payment of principal or interest under the Inclusionary Promissory Note when due, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the payment of money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30)-day period, such failure shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within one hundred twenty (120) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; 35 (0 Work on the construction ceases for thirty (30) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other deity, strikes or other causes beyond Developer's reasonable control); (g) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues unstayed for sixty (60) days or more for any reason; (h) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the City Project Manager's prior written consent; W Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, construction or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or (i) any of the Senior Loan documents is revoked or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the City Project Manager's prior written consent, or (ii) Developer defaults or otherwise fails to perform any of its duties or obligations under or in connection with any of the Senior Loan documents, subject to all applicable notice and cure periods, or (iii) any of the Senior Loan documents is amended, supplemented or otherwise modified without City's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by Developer's Limited Partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, City may, at its option and in its absolute discretion, do any or all of the following: 36 80A-42 (a) By written notice to Developer, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 (e) shall automatically, without notice or other action on City's part, cause all such amounts to be immediately due and payable; (b) In its own right or by a court -appointed receiver, take possession of the Property, enter into contracts for and otherwise proceed with the completion of the construction by expenditure of its own funds; (e) Exercise any of its rights under the Loan Documents and any rights provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as City elects in its sole and absolute discretion; and, (d) Suspend or terminate the award of Inclusionary funds if Developer fails to comply with any term of such award. 20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. The City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations; City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights. 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. 37 • M 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: AMCAL 1440 Santa Ana Fund, L.P. c/o AMCAL Multi -Housing, Inc. 2082 Michelson Drive, Suite 306 Irvine, CA 92612 Attention: Mario Turner Copy to: AMCAL Multi -Housing, hie. 30141 Agoura Road, Suite 100 Agoura Hills, CA 91301 Attention: General Counsel Copy to Limited Partner 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: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non -receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loan(s) described herein and have been or will be relied on by City notwithstanding any investigation made by either party. W. 21.4 No Third Parties Benefited. This Agreement is made for the purpose of setting forth rights and obligations of Developer and the City, and no other person shall have any rights hereunder or by reason hereof. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and City and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under any Loan Document without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Any such assignment without such consent shall, at City's option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the City and Developer with respect to the Loan and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective Lmless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 21.8 Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9 Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents. 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. 39 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 [RESERVED] 21.15 Plans and Data. Where Developer does not proceed with the work and construction of the Project, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to City any and all plans and data concerning the Property, and City or any person or entity designated by City shall have the right to use such plans and data without compensation to Developer. Such right of City shall be subject to any right of the preparer of the plans to their use. 21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 21.17 Transfer of Developer Limited Partner's Interest. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, no consent shall be required of the City (and it shall not be deemed a default or an Event of Default under any of the Loan Documents), in connection with the transfer and/or the assignment by the Developer's limited partner of its interest in the Developer to an entity controlled or managed by an entity which is related to or under common control with the Developer's limited partner. 21.18 Removal of Developer's General Partner. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, the removal and/or replacement of a General Partner for cause in accordance with the Partnership Agreement shall not require the consent of the City and shall not shall not constitute a default or an Event of Default under this Agreement or the Loan Documents or accelerate the maturity of the Inclusionary Loan. If the Developer's limited partner exercises its right to remove a General Partner, City will not unreasonably withhold its consent to the substitute general partner; provided however, the consent of either the City shall not be required if the substitute general partner is an affiliate of the Developer's limited partner. The substitute general partner shall assume all of the rights and obligations of the removed general partner hereunder. :1 IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho By: lean O. Attorney RECOMMENDED FOR APPROVAL Robert C. Cortez Deputy City Manager CITY OF SANTA ANA Gerardo Monet Acting City Manager (Signatures continue on following page) 41 DEVELOPER: AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership IN EXHIBITS A. Legal Description B. Affordability Restrictions on Transfer of Property C. Inclusionary Deed of Trust D. Inclusionary Promissory Note E. Project Budget F. Scope of Work / Schedule of Performance G. Form of Residual Receipts Report H. Partnership Agreement 43 80A-49 Exhibit A: Legal Description FOODIMT1 EXHIBIT "A" Legal Description All that certain real property situated in the County of Orange, State of California, described as follows Parcel 1: The Easterly 112.51 feet of the Westerly 437.51 feet of that portion of land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the Final Decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B" Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the center lines of First Street and Me Clay Street, as shown on a Map filed in Book 47, Pape 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06' 48" West 398.34 feet to the point of beginning. Excepting therefrom, that portion of the North 71.00 feet as described in the Deed to the City of Santa Ana, recorded April 15, 1960 in Book 5196, Page 381 of Official Records. Parcel 2 A non-exclusive easement for ingress and egress over the South 25 feet of the Westerly 325 feet of that portion of the land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 890 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397,90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06' 48" West 398.34 feet to the point of beginning, Parcel 3: The Westerly 175.00 feet of the Easterly 375.00 feet of that portion of the land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast comer of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 'feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06' 48" West 398.34 feet to the point of beginning. 80A-51 Excepting therefrom, the South 21 feet of the North 71 feet thereof Parcel 4: A non-exclusive easement for ingress and egress over the South 25 feet of that portion of the land allotted to N. O. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest comer of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Boole 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06' 48" West 399.34 feet to the point of beginning. Excepting therefrom, the Easterly 375.00 feet. Parcel 5: A non-exclusive easement for ingress and egress, for sewer lines, public utilities and drainage and the maintenance of these items over the South 25 feet of the following described land: The Westerly 437 feet of that portion of the land allotted to N. O. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest comer of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06' 40" East 397.90 feet to the Southeast comer of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06' 48" West 398.34 feet to the point of beginning. Assessor's Parcel Number: 011154-43 80A-52 Exhibit Bo. Affordability Restrictions on Transfer of Property Fgerllilff FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Housing Division Manager AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (Address: 1440 East First Street, Santa Ana, California) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") and the City of Santa Ana, a charter city and municipal corporation (the "City"). RECITALS: A. Developer is the owner of that certain real property located at 1440 East First Street, Santa Ana, California (the "Property"), more particularly described in Exhibit A, which is attached hereto and incorporated herein by this reference. B. The City's Housing Opportunity Ordinance ("Ordinance") was originally adopted by the City Council on November 28, 2011 (Ordinance No. NS-2825), and is codified in Article XVIII.1 of the Santa Ana Municipal Code ("SAMC"). The Ordinance was amended by the City Council on September 1, 2015 (Ordinance No. NS-2881), and on October 6, 2015 (Ordinance No. NS-2885). The Ordinance established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to SAMC section 41-1904(c), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the Inclusionary Housing Fund, as defined by SAMC section 41-1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41-1909. C. For the purpose of providing sixty-nine (69) units of housing that will be affordable to Extremely -Low, Very -Low and Low Income households ("Assisted Units"), the Developer and the City have entered into that certain Loan Agreement, dated on or about the date hereof (the "Inclusionary Loan Agreement") to which these Restrictions are attached as Exhibit G, which, along with all of its attachments, is incorporated herein by this reference (any capitalized term that is not otherwise defined in these Restrictions shall have the meaning ascribed to such term in the Inclusionary Loan Agreement). D. In furtherance of the Inclusionary Housing Program guidelines, Developer has applied to the City for a loan with which to: 1. provide deeper affordability and construct the improvements to the Property, and 2. thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. E. The City, on certain terms and conditions, desires to make such loan ("Inclusionary Loan") to Developer in order to make possible the rehabilitation and construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. F. The Inclusionary Loan Agreement, Inclusionary Deed of Trust, and Inclusionary Promissory Note, dated concurrently herewith (collectively the °Inclusionary Loan Agreements") are entered into for the purpose of providing for affordable very low income residential rental units in the City of Santa Ana pursuant to the Inclusionary Funds regulations and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions "Affordable Housing" means the total housing costs paid by a qualifying household, which shall not exceed the fraction of gross income specified, as follows, in accordance with Sections 50052.5 and 50053 of the Health & Safety Code: Very Low -Income Households. Thirty (30) percent of the income of a household earning fifty (50) percent of the Orange County median income adjusted for family size appropriate for the unit. Low -Income Households. Thirty (30) percent of the income of a household earning seventy (70) percent of the Orange County median income for for -sale units, and thirty (30) percent of the income of a household earning sixty (60) percent of the Orange County median income for rental units, adjusted in either case for family size appropriate for the unit. In the event of a conflict between the fractions specified in this definition and those found in Sections 50052.5 and 50053 of the Health & Safety Code, the fractions specified by State law shall control. "Affordability Period" also referred to as "Term of Affordability", shall be fifty-five (55) years from date of issuance of Certificate of Completion. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the California Tax Credit Allocation Committee (TCAC). "Agreement" means this Affordability Restrictions on Transfer of Property between the City and the Owner affecting real property. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Inclusionary Funds. "Building Permit" means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Inclusionary Loan Agreement and Inclusionary Deed of Trust recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Developer" or "Owner" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Event of Default" has the meaning set forth in Section 20.1. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et secs., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. Hazardous Material shall not include (i) construction products, household cleaners and office materials of the type and quantity ordinarily used in the normal construction, operation and maintenance of properties similar to the Project or (ii) small amounts of household mold to the extent promptly remediated upon discovery. "HCD" means the California Department of Housing and Community Development (HCD) and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting). "Inclusionary Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit C to the Inclusionary Loan Agreement, to be executed by Owner pursuant to Section 5.E.2 in order to secure the Inclusionary Loan Note. "Inclusionary Loan" means the loan to be made by the City to Owner in the principal amount of Two -Million, Six Hundred Thousand Dollars ($2,600,000.00) in accordance with this Agreement. "Inclusionary Promissory Note" means that certain promissory note in the original principal amount of $2,600,000 in the form attached as Exhibit D to the Inclusionary Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the Inclusionary Loan through residual receipts as further described in the Inclusionary Promissory Note. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non - recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 18.2. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. 4 80A-57 "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). "Inclusionary Loan Agreement" means the Loan Agreement regarding the loan of Inclusionary funds between the City and the Owner, and any attachments thereto. "Inclusionary Loan Documents" means, collectively, the Inclusionary Loan Agreement, Inclusionary Promissory Note, Inclusionary Deed of Trust and this Agreement, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by TCAC. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HCD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMP. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached as Exhibit G to the Inclusionary Loan Agreement, as modified from time to time in accordance with the Inclusionary Loan Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1440 East First Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Restricted Units" means the units restricted as affordable by the City Documents. "Scope of Work" means the detailed statement of the work to be performed by Owner on and to the Property pursuant to this Agreement, which is attached as Exhibit H to the Inclusionary Loan Agreement. "Schedule of Performance" means the detailed schedule setting forth timeframes for certain tasks, which document is attached as Exhibit I to the Inclusionary Loan Agreement. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender concurrent to the Inclusionary 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 first deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by TCAC. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Very Low Income households, as provided in the Inclusionary Loan Agreement and these Restrictions 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. a. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty- five (55) years from the effective date of the issuance of the Certificate of Completion. b. The Project shall consist of approximately sixty-nine (69) units of which there will be six (6) four -bedroom units, twenty-eight (28) three -bedroom units, and thirty-five (35) two -bedroom units (one being a manager's unit). The affordability mix for the Project is as follows: Bedroom Size 30% AMI 40% AMI 50% AMI 60% AMI Manager's Unit Total Two Bedroom 29 0 4 1 1 35 Three Bedroom 4 0 17 7 28 Four Bedroom 1 0 0 5 6 Totals 34 0 21 13 1 69 C. Affordable rents shall be calculated and governed as provided by the California Tax Credit Allocation Committee (TCAC). Rental increases shall be in conformance with federal and state law. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent tables published by TCAC. 3.2 Rent Increases: A. On an annual basis, the City shall provide the Developer with the maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units for the Property) which shall correspond to the maximum rent increase allowed by TCAC. B. Developer, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by TCAC. The City Manager, or designee, shall notify Owner in writing of the adjusted allowable maximum incomes and rents as allowed by TCAC. C. In no event shall the rent charged to the tenant of a Restricted Unit be more than that amount of the rent as published by TCAC, as amended from time to time (currently $604 for a two -bedroom unit, $700 for a three -bedroom unit, and $780 for a four -bedroom unit). D. Utility allowances must be deducted from the Maximum Gross Monthly Rent. Utility allowances are deducted from rents using the following amounts set annually by the Housing Authority of the City of Santa Ana, provided, however, in lieu of the utility allowance published by the Housing Authority the Developer may elect to use the California Utility Allowance Calculator to the extent allowed by TCAC. 4. Miscellaneous Provisions: A. Owner shall adopt and include as part of its Management Plan (described in subsection G below), written tenant selection policies and criteria for the Units that meet the following requirements: (a) Are consistent with the purpose of providing housing for Extremely -Low, Very -Low and Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to ,:1 N .1 perform the obligations of the lease; (c) Reserved; (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Owner, the City shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re -renting of any Restricted Units. B. Owner, its successors and assigns, shall not refuse to lease a emit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a federally funded tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable tenant -based assistance document. C. Any lease of any of the Units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "Owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. D. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. E. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards and state and local code requirements and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted on the Property. F. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. G. Not later than the closing for the construction loan for the Project, Owner shall submit to the City Project Manager a Management Plan in a form that is acceptable including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the City Project Manager not later than the time for the issuance of a certificate of occupancy for the Project. Owner shall manage the Restricted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the City Project Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent. The City Project Manager shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. FOODIXIIN (b) Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the issuance of a certificate of occupancy for the Project, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the City Project Manager. The budget and cash flow shall be in a form that is reasonably acceptable to the City Project Manager. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. H. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, City shall provide Owner with notice thereof which notice shall include a reasonable cure period not less than thirty (30) days. If the deficiencies have not been cured within the cure period provided in the City notice Owner shall change the management agent or the practices complained of, upon receipt of written notice from the City Manager. The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (30) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. I. The covenants established in these Restrictions and any amendments hereto approved by the City, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. These Restrictions shall remain in effect for fifty-five (55) years. In its discretion, the City may defer repayment of the Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Restricted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. J. Reserved. K. Records and Audits. a. Owner shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with NSP funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority -owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (2) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the date on which Owner obtained ownership of the Property; (3) any other reports issued by other monitoring agencies. b. All records pertaining to each calendar year of Inclusionary funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates. Owner shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. C. If so directed by the City or HUD upon termination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City or HUD, as depository. d. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, or HUD, on reasonable prior notice, for the purpose of examination or audit. e. The City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall reasonably cooperate with City in performing such audit. f. Owner shall permit the City to perform an Annual Physical Inspection of the Property with at least seven (7) days notice. Owner shall cooperate with this Inspection and shall take all steps necessary to quickly correct any code deficiencies identified during the Inspection. L. The City is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the l • community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. M. The covenants and agreements contained herein shall run with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. N. The Loan Agreement and all of its attachments shall be enforceable by the City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City Note and the City Deed of Trust provide a means of enforcement by the City if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land. .O M • IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Maria D. Huizar Cleric of the Council APPROVED AS TO FORM Sonia R. Carvalho City Attorney By: Ryan O. Hodge Assistant City Attorney RECOMMENDED FOR APPROVAL Robert C. Cortez Deputy City Manager CITY OF SANTA ANA Gerardo Monet Acting City Manager {Signatures continue on following page} FOODINT",, DEVELOPER: AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership IN Exhibit Co. Trust ... FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M-26) Santa Ana, California 92702 Attn: Housing Division Manager INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this day of February, 2017, by between AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership (the "Trustor"), , a (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the 'Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1440 East First Street, Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Inclusionary Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain Inclusionary Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreement is on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of this Trust, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or • • 1 buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of Two Million Six Hundred Thousand Dollars ($2,600,000.00) (the "Inclusionary Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This Deed of Trust is executed and delivered, along with the Inclusionary Promissory Note and the Inclusionary Loan Agreement, to benefit the Property. A copy of said Inclusionary Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or Inclusionary Promissory Note secured by this Deed of Trust. 2. Truster's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place except that the City's Affordability Restrictions on Transfer of Property shall be subordinated to Trustor's Senior Loan for acquisition. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to all applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority FOODIM11 over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Truster that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. 80A-71 Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Truster secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Inclusionary Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security upon reasonable prior notice during normal business hours; provided that the Beneficiary will give Truster reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Truster shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Truster at 2082 Michelson Drive, Suite 306, Irvine, CA 92612, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Division Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County, 16. Severability. In the event that any provision or clause of this Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the hiclusionary Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the City Loan Note are declared to be severable. 80A-72 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the Inclusionary Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Truster shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Truster to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include any transaction not considered a "transfer' under Section 16.2 of the Loan Agreement. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the Inclusionary Promissory Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may involve the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Trustor's limited partner shall be deemed to be a cure by Trustor and shall be accepted or rejected on the sarne basis as if made or tendered by Trustor. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Truster will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if. (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the Inclusionary Promissory Note has occurred; (b) Truster cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Tmstor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Truster's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconve a ce. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Inclusionary Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, Inclusionary Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. (Signatures on Following Page) IN WITNESS WHEREOF, Truster has executed this Deed of Trust as of the date fast written above. AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership In Exhibit Do. Inclusionary Promissory Note 80A-77 INCLUSIONARY HOUSING FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1440 East First Street, Santa Ana, California) $2,600,000.00 February , 2017 Santa Ana, California Principal Amount of Loan FOR VALUE RECEIVED, AMCAL 1440 Santa Ana Fund, L.P., a limited partnership ("Borrower"), hereby promises to pay to the CITY OF SANTA ANA, a charter city and municipal corporation ("City"), or order, a principal amount not to exceed TWO -MILLION, SIX HUNDRED THOUSAND DOLLARS ($2,600,000.00) or so much thereof as may be advanced by the City to the Borrower, due and payable with 3% simple interest by residual receipts over the fifty-five (55) year term, pursuant to the Inclusionary Loan Agreement (said "Agreement') between Borrower and the City dated concurrently herewith, which is incorporated herein by this reference. The Note Amount shall bear simple interest at the rate of 3% simple interest per annum, from the date of issuance of the Certificate of Occupancy. This loan is made pursuant to the "Housing Opportunity Ordinance In -Lieu Fee Program" or "In -Lieu Fees" with money funded through the Program as "Inclusionary Housing Funds". Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to City hereunder is subject to the terms of said Agreement, the Affordability Restrictions on Transfer of Property, Inclusionary Deed of Trust and this Note. Said documents are public records on file in the offices of the City, and the provisions of said documents are incorporated herein by this reference. This Note, said Agreement, the Affordability Restrictions on Transfer of Property, and the Inclusionary Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. This Note evidences the obligation of Borrower to the City for the repayment of the Inclusionary Loan of Inclusionary Funds attributable to the acquisition, development, adaptive reuse and construction of the Property, and related soft costs. This Note is payable at the principal office of City of Santa Ana — Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Attn: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 2. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "Agreement" means the Inclusionary Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Inclusionary Housing Program, and the Inclusionary Funds. "Area Median Income" means the median income figures for Orange County as published by the California Department of Housing and Community Development (HCD). Also may be referred to as "AMI" herein. "Borrower" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Inclusionary" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the Inclusionary Deed of Trust. "City's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50%) of the total Residual Receipts from the Property as further described in Section 5 hereof. "Closing Costs" shall mean: G) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Inclusionary Housing Program" has the meaning set forth in the Recitals above. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Housing Successor Agency Loan" means the loan made by the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency to the Developer in the original principal amount of $6,195,000. "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 not to exceed 8% of gross rents; (iii) Owner Administration Fee not to exceed 5% of gross rents; (iv) deposits into required reserves; (v) any deferred developer fee; (vi) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms -length transactions for similar services in Orange County, California area. 3 ,:1 M :1 (vii) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). "Inclusionary Deed of Trust" shall mean the Inclusionary Deed of Trust in favor of the City, securing the Inclusionary Loan, substantially in the form attached to the Agreement as Exhibit D, which is incorporated herein by this reference. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Inclusionary Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. "Inclusionary Funds" shall mean the money provided under the Inclusionary Housing Program for the construction of the rental units hereunder. "Property" shall mean that property located at 1440 East First Street, Santa Ana, California. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan, except for the payoff of the conventional lender's acquisition loan for the Property.. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale" shall not include any transaction not considered a "transfer' under Section 13. "Senior Loan" shall mean any senior loan made to Borrower, for payment of Acquisition and/or Rehabilitation Costs, and shall include any subsequent loan that refinances said Senior Loan. "Term" the term for repayment of this Note shall mean fifty-five (55) years from the date of recording of the Deed of Trust securing the Note. "Term of Affordability" the term of affordability shall be fifty-five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement. 4. Ooeratin¢ Capital Improvement Loan. If the replacement reserve account ("reserves") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment/ Residual Receipts. a. Commencing on the date one hundred fifty (150) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter, the Borrower shall submit to the City an audited financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make an Inclusionary Loan payment then due. FOODIX46y c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of principal. At least fifty percent (50%) of the Residual Receipts shall remain with the Borrower, with all Residual Receipts remaining with Borrower to the extent the Inclusionary Loan has been fully repaid. d. Borrower shall retain fifty percent of the Residual Receipts. The other percent (50%), the City's Percentage of the Residual Receipts, shall be divided with thirty percent (30%) to be applied to the Inclusionary Loan, and seventy percent (70%) to be applied to the payment of the Housing Successor Agency Loan. As Borrower repays its loans, the payment percentage applied to the remaining loans shall increase. e. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the principal balance of the loan. 6. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note (other than refinancing of the conventional lender acquisition and/or construction loan) not to exceed the outstanding balance of principal on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the Refinancing Proceeds of which City Percentage shall be used thirty percent (30%) to repay the Inclusionary Loan, and seventy percent (70%) to repay the Housing Successor Agency Loan to the extent of the outstanding balance on this Note. At least fifty percent (50%) of the Refinancing proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in full. Loan Repavment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the City from any Sale that occurs during the term of the Inclusionary 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 the City's Percentage of the Refinancing Proceeds of which City Percentage shall be used thirty percent (30%) to repay the Inclusionary Loan, and seventy percent (70%) to repay the Housing Successor Agency Loan, and the amount necessary to pay any deferred developer fee in full, not to exceed the outstanding amount of principal due on this Note. At least fifty percent (50%) of the Sale Proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to FOOMMOOF the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. S. Accelerated Loan Pavment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in firll the Inclusionary Loan, the City approves such sale and the purchaser assumes the balance of the Inclusionary Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the Inclusionary Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default (subject to any applicable notice and cure provisions by Borrower as to any other loan or loans by City to Borrower with respect to the Property; or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this Inclusionary Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty-five (55) years. 10. Lawful Money. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charges. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal, due the City pursuant to this Note, and the balance, if any, to the payment of principal. FJ A b. If any payment is not received by the City within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4%) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 12. Securi This Note is secured by the recorded Deed of Trust. 13. Acceleration by Reason of Transfer or Financing. a. In order to induce City to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates 8 FOOMMOOP 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 Inclusionary Loan shall be repaid to the City at the time of each Refinancing or partial Refinancing. Additionally, a "Transfer" shall not include any transaction not considered a "transfer' under Section 16.2 of the Loan Agreement, 14. Event of Default. Subject to the provisions of Sections 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Bon-ower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after any applicable notice has been provided and the expiration of any applicable cure period therefore, if any, provided therein. 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4%). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 16. Attorney Fees. If this Inclusionary Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. FOOMMOR 17. Severability. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non -recourse. The Inclusionary Loan is a nomecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the Inclusionary Loan or for any other amounts under any of the documentation evidencing, securing or describing the Inclusionary Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the Inclusionary Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and acknowledged by Borrower and City that the Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. 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 tune, correction or remedy with reasonable diligence, provided such tune, 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). 10 FOOMM46h d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of fifteen (15 Business Days after such notice is received within which to cure the default prior to exercise of remedies by City under this Note and the Deed of Trust. f If a non -monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the Inclusionary Loan in balance and rebuild the Property in a manner that provides adequate security to City for repayment of the Inclusionary Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Inclusionary Loan in a manner that provides adequate security for repayment of the remaining balance of the Inclusionary Loan. 23. Force Maieure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; 11 FOODIX40FOO epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 24. Assignments. The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 12 This Inclusionary Promissory Note is hereby agreed to and executed on the date first set forth above. "BORROWER" AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership 0 UM 13 DIA • ' Exhibit Ee. Project USES , I-MALPRO). =[O5P LaLOST31TION � Ionand co:a of Valuevawa 4s60,000 oemotRlon 375,000 Site Re uddlauon 175,000 Total 5,050,000 Acquldtlon Loan Fee 38,430 Acquisition legal 19,375 Off -Site Improvements 193,393 Total Acqulslaon Cast 251,198 Total land Cost/ Acquisition Cost 5,301,198 �WewWoksmfLCARN: Site Work 1,874,880 Structures 9,900,677 General Requlrelnents 759,490 Contractor Overhead 5ZE,707 Contractor Philp 526,707 Other General Liability Insurance Olien(SpecifO Total New Construction Los[8 13,583,461 ARGNIiffT�IN4 Pefr' ,- Oeslgn 520,550 Supe M.a Total Architectural Costs 520,550 Total Survey&Engineering 1,130, 140 Cdnetruction Loan Interes&FEES Cleland Rion Loan Interest 874,E89 Origination fee 190,8I9 Credit LnM1ancemen Fee Readt/Applkallon Pontl Premium 15,000 Taxes 171,148 1]9,148 Told & Re Told &(Cl.sging Other: (Closing Casts( 20,000 20,000 .,her Total Construotlbn Interest Fees 1,493,904 AFFIN_G Leon Orlglnatlan fee LeonANEl.11.1 69,058� Credit Enhancement/APPllcatlon Fee Title & Reaortling 10,000 Tana Insensate 5,000 Other (Closing costs) - 20,000 other: speorM Total Permanent Financing Costs 108,055 Subtotals Forward 22,142,308 LEGACEEES Lender Legal Pald byApplicant 75,000 Other'. (Partnershe Legal) 150,000 Total Attorney Costs 225,000 Rrves RentReseeal Rele Capltalizetl Part serves Ne Operating Reserve 203,015 Other:(Transition se N) Total Reserve, Costs 203,015 APPR 15AL Total Aptinge Costs 15,000 Total CanNngeCost OTNEHPg01ECTCRs'cXT§ TCAC/CDLAC Fees 88,542 uAllocation/MBni[oring EnsLosim nmental Audit Fees 22,457 1,322,398 Pecmit ProcessingF es Permit Processing Fees ]06.398 Capital F Marketlng 15, Furnishings 7,899 Matkat Study 23,150 sltiles 60,000 O Set Cast Cnllnllnl Other: Relocation 95, 55,161163 Other:(Nerd Calls ContInte cy Other: Fretlevelopmenl Interest/HOIdIng Costs) 715,593 804 T15,804 Other: Other: Other: Other: Total Other Costs S,180,724 R C SVeTOTAL PROIEOST 1.$ 3T,]fi6C4704] OWeCOPI Neva er Overlie 1, 899,000 r Partner Non ProfitPartner Frofll 100,000 PIO)eca Adminlsnation ct Ad Broker Fees Po d too ga1,1sd Par[ COnst OverslgM1tby Nevelaper Other (Specify) Total Oevelopar Costs 1,999,999 TOTAL PROJECT COSTS 29,766,046 Exhibit Fee Scope of Work /Schedule of SCOPE OF DEVELOPMENT The development is a 69-unit affordable rental apartment community that will serve family households. The property address of the subject site is 1440 East First Street in the City of Santa Ana. The development site consists of approximately 2.16 acres. The project will contribute to improving the neighborhood and will provide much needed affordable family housing to the community. The units are affordable to households earning between 30% and 60% Area Median Income (AMI). The unit mix includes thirty-four (34) 2-bedroom, twenty-eight (28) 3-bedroom, and six (6) 4-bedroom units. Of the 69 total units, 68 will be reserved for affordable households and 1 unit will be an unrestricted Manager's Unit. The two, three, and four -bedroom unit offer contemporary living for residents including balconies/patios, personal storage space, modern kitchens and bathrooms. To provide the most convenient living environment for families, all kitchens have garbage disposals, dishwashers and other amenities. The appliances will be energy efficient models to further reduce costs for residents. The project will achieve a Leadership in Energy and Environmental Design (LEED) Silver designation. The building design is contemporary and will utilize high standards of construction and sustainable design. The buildings are three stories in height and oriented towards First Street with the primary building lobby located at the ground level. The residential units will be located within six buildings, each constructed as a Type V three story tuck -under design. A community laundry building is also provided at the ground level. The resident parking includes garages and surface parking spaces. On -site amenities include a community room, outdoor gardens and amenity space including tot lots/play areas for children; outdoor seating, BBQ, 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. The convenient location of the development will provide resident access to public transportation, parks, markets, a public school, medical clinic and retail outlets. :1 M • Proposed Development Schedule: EVENT DATE Community Redevelopment and Housing Commission 3/28/2016 City Council 4/19/16 Site Acquired 8/30/2015 Begin Entitlements 8/3/2015 City Staff Approval of Entitlements 3/28/2016 9% Tax Credit Application 3/1/2017 9% Tax Credit Award 6/30/2017 Begin Construction Documents 7/1/2017 Construction Financing Secured 8/1/2017 Tax Credit Investor Secured 8/1/2017 Begin Construction/Building Permit Issued 11/1/2017 Construction Complete 5/1/2019 Leasing Process Begins 5/1/2019 Project Fully Leased 8/1/2019 . M Exhibit G: Form of Residual Receipts = ... EXHIBIT G FORM OF RESIDUAL RECEIPTS REPORT Community Redevelopment Agency of the City of Santa Ana Residual Receipts Report for the Year Ending Date Prepared Please complete the following information and execute the certification at the bottom of this form. Annual Project Revenue Please report Annual Project Revenue for the year ending on the following lines: Rent Payments (including Section 8 tenant assistance payments, if any) Interest Income (do not include interest income from replacement and operating reserves nor interest income on tenant security deposits) Additional Income (for example, vending machine income, tenant forfeited deposits, laundry income not paid to the residents' association) Total Annual Project Revenue (Add lines 1, 2, and 3) Operating Expenses' Please report Operating Expenses incurred for the year ending on the following lines: Operating and Maintenance Expenses Utilities Property Management Expenses and On -Site Staff Payroll Administrative Expenses Property Taxes Insurance (5) (6) (7) $ (8) $ (9) $ (10) $ Other Expenses (11) Please list these expenses: Total Annual Operating Expenses for the Housing Project (12) (Add lines 5, 6, 7, 8, 9, 10, and 11) Net Operating Income (Subtract Line 12 from Line 4) (13) Do not include expense unrelated to the operation of the Rental Portion of the Project, such as depreciation, amortization, accrued principal and interest expense on deferred payment debt, or capital expenditures. Additional Cash Flow Payments Obligated First Mortgage Debt Service Payments (as approved by the Agency and (14) other parties that may have such approval rights) and Obligated Secondary Subordinate Debt Service Payments (as approved by the Agency and other parties that may have such approval rights) Scheduled Deposits to Reserves (as approved by the Agency) (15) Additional Payment Obligations (such as partnership management fees, deferred (16) developer fees, or repayments on loans to partners, as approved by the Agency to have priority over Residual Receipt Payment to the Agency) Total Additional Cash Flow Payments (Add lines 14, 15, and 16) (17) Residual Receipts for Year Ending (18) $ (Subtract Line 17 from Line 13) Percentage of Residual Receipts to be Paid to the Agency (as shown in the (19) % Promissory Note by and between the Agency and Borrower dated Amount Payable to the Agency (Multiply Line 18 by Line 19) (20) The amount payable to the Agency listed on Line 20 is subject to payment according to the terms of the Promissory Note by and between the Agency and Borrower dated . If Line 20 is $0.00 or negative, you owe nothing to the Agency this year. If Line 20 is a positive number, remit check payable to and attach to this report. .O • Exhibit He. Partnership Agreement FOODTM.. NO PARTNERSHIP INTEREST REPRESENTED BY THIS AGREEMENT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968, AS AMENDED, IN RELIANCE UPON EXEMPTIONS FOR SALES NOT INVOLVING ANY PUBIC OFFERING AND UPON THE REPRESENTATION THAT SUCH PARTNERSHIP INTERESTS WILL NOT BE TRANSFERRED UNLESS AN OPINION OF COUNSEL IS GIVEN, SATISFACTORY TO THE GENERAL PARTNER AND ITS COUNSEL, THAT REGISTRATION IS NOT REQUIRED. LIMITED PARTNERSHIP AGREEMENT OF AMCAL 1440 Santa Ana Fund, L.P. This Limited Partnership Agreement of AMCAL 1440 SANTA ANA FUND, L.P. ("Agreement") is entered into as of September 1, 2015 between AMCAL Multi -Mousing Two LLC, a California limited liability company, as general partner ("Administrative General Partner"), and the parties signing at the end of this Agreement, as limited partners ("Limited Partner" or "Limited Partners"). The Partners agree as follows: 1. Formation. The Limited Partners and the General Partner hereby enter into a Limited Partnership ("Partnership") pursuant to the Uniform Limited Partnership Act of 2008, Corporations Code Section 15900 and following, ("the Act") and the rights and liabilities of the Partners shall be as provided under California Law, except as set forth below. 2. Name. The name of the Partnership is AMCAL 1440 SANI'A ANA FUND, L.P., a California Limited Partnership. 3. Principal Place of Business. The principal place of business of the Partnership is 30141 Agoura Rd., Suite 100, Agoura Hills, CA 91301, 4. Purpose. The purpose of the Partnership shall be to purchase, hold, develop, manage, improve, lease, sell that certain real properly, described on Exhibit "B" ("Partnership Property") and all related activities. 5, Term, The Partnership shall begin when the Certificate of Limited Partnership is filed with the Secretary of State as required by the Act and shall continue until the first to occur of: (a) December 31, 2045 (b) dissolution by mutual agreement of the General and Limited Partners (c) termination as hereinafter provided, or (d) by operation of law, Initlal LP Ag[eement - Santa Ana 9. 1. 1$9. 1. 15 a. 80A-100 6. Capital Contributions. 6.1. initial Capital. The Administrative General Partner shall contribute administrative services and not money or other property to the Partnership. The initial capital contribution of the Limited Partners shall be the total amount shown on Exhibit "A" render the heading "Initial Contribution". The Administrative General Partner shall also hold Limited Partners' interests to the extent shown on Exhibit "A" hereto. 6.2. Additional Limited Partners. If all the Limited Partners do not respond to a call for additional funds when due or for additional funds pursuant to paragraph 6.8, the Administrative General Partner shall be authorized to admit additional Limited Partners. Such Limited Partners shall become parties hereto by executing such documents as the Administrative General Partner may require pursuant to which they agree to be bound by this Agreement. The admission of additional Limited Partners shall not cause a dissolution of the Partnership. 6.3. Capital Accounts. A "Capital Account" shall be maintained for each Partner. The Capital Account for each Partner shall be equal to such Partner's initial capital contribution increased by: (i) cash and the fair market value of any property subsequently contributed to the Partnership by such Partner (net of liabilities assumed or taken subject to by the Partnership, pursuant to the provisions of Section 752 of the Internal Revenue Code of 1986 "[IRC"]) and (ii) such Partner's allocable share of Partnership income and gains, including any tax-exempt income; and decreased by: (a) cash and the fair market value of property distributed to such Partner (net of liabilities assumed or taken subject to by such Partner pursuant to the provisions of IRC Section 752), (b) such Partner's allocable share of Partnership losses and (c) such Partner's allocable share of expenditures of the Partnership described in IRC Section 705(a)(2)(B); and, notwithstanding the above, further adjusted as required to comply with Treasury Regulations Sections 1.704-1(b)(2)(iv), including without limitation the provisions of subparagraphs (d), (e), (g), 0), (m), (n) and (r) thereof, All allocations for purposes of this Paragraph 63 shall be determined in accordance with the provisions of Article 7 (entitled "Profits, Losses and Distributions"). Each Partner shall have a single Capital Account which shall reflect all interests that Partner. 6.4. Limited Liability. Although a Limited Partner is personally liable to the Partnership for payment of his capital contribution, no Limited Partner will be bound by, or personally liable for the expenses, liabilities, or obligations of the Partnership, except to the extent of the Limited Partner's contribution to the capital of the Partnership and his share of the Partnership's undistributed profits; however, to the extent required by law, any Limited Partner receiving a distribution in return of all or a portion of his capital contribution shall be liable to the Partnership for any sum returned, plus interest, necessary to discharge Partnership liabilities to creditors whose claims arose before such return and before an amended certificate of limited partnership was filed reflecting such return of capital. 6.5. Role of Limited Partner. Except as otherwise provided in this Agreement or by law no Limited Partner shall take part in or interfere in any manner with the conduct or Initf.al LY ngeoOMNlt - SInta Ana s.a.ls 9.1.1.5 2 80A-101 control of the business of the Partnership or have any right or authority to act for or on behalf of the Partnership. 6.6. Interest. Interest earned on Partnership funds shall inure to the benefit of the Partnership, and Limited Partners shall not receive interest on funds contributed by them, 6.7. Right to Withdraw Contribution. No partner shall have the right to withdraw or reduce his contribution to the capital of the Partnership except as a result of the dissolution of the Partnership or as otherwise permitted by the Act, and no partner shall have the right to demand or receive property other than cash in return for his contributions to the Partnership. 6X Failure to Make Additional Capital Contributions. If the Partnership has insufficient funds to pay the Partnership's obligations, the Administrative General Partner shall have the option of either advancing the necessary sums and thereafter being reimbursed from Partnership funds as they become available or levy a capital contribution assessment on all Partners in proportion to their respective partnership interests. If any such additional contributions are not received within 15 days after the Partners are notified of the election to assess, the additional capital would be raised by first giving the remaining partners the first right of refusal to buy the incremental funding of the partners who do not come up with the required surn. If this fails the, Administrative General Partner would attempt to get new partners to buy the incremental funding required. The new money contributed (hereinafter "New Money") will receive a 30% annual return and the New Money will be returned to the investor before previously contributed capital receives a return or is returned to partners. 6.9. Loans. Any sums in excess of the total capital contributions required by this Agreement, required to meet the costs of owning and operating the Partnership Property may be loaned to the Partnership by the Partners, either General or Limited, and may be repaid with interest not to exceed the legal maximum when the Partnership has funds available not required in the operation of the Partnership business. Any such loans shall not increase the lending Partner's interest in the Partnership. Profits, Losses and Distributions. 7.1. Definitions. For purposes of this Agreement, the following capitalized terms are defined as follows; 7.1.1. "Distributable Cash" is all cash of the Partnership (including without limitation cash from the sale of any or all of the Partnership property) less (i) the amount necessary for payment of all costs, expenses, obligations and liabilities of the Partnership then due (including any then due advances to the Partnership by the Partners), and (ii) the amount deemed necessary by the Administrative General Partner, in the exercise of its reasonable discretion, to establish a reserve for the payment of foreseen or unforeseen costs, expenses, obligations or liabilities of the Partnership. initial LV Agreement - Santa Ana 9.1359.1 15 80A-102 The Partnership shall not make, or receive and retain, any distribution of assets or any income of any kind of the project except surplus cash and except on the following conditions: (1) All distributions shall be made only as of and after the end of a semiannual or annual fiscal period; (2) No distribution shall be made from borrowed funds, prior to the completion of the project or when there is any default under this Agreement or under the note or mortgage; (3) Any distribution of any funds of the project, which the party receiving such funds is not entitled to retain hereunder, shall be held in trust separate and apart from any other funds; and (4) There shall have been compliance with all outstanding notices of requirements for proper maintenance of the project. 7.1.2. "Income", "gains", "losses", "deductions", and "credits" are the Partnership's income, gains, losses, deductions and credits, respectively, as finally determined for federal income tax purposes; provided, however, that in making the allocations of such items for purposes of capital account adjustments, the adjustments required by Treasury Regulations Section 1,704-1(b)(2)(iv)(g) shall be taken into account. 7.1.3. The "Accounting Period" of the Partnership will be each period commencing on the first day following the last day of the immediately preceding Accounting Period (which for the Partnership's first fiscal year shall be deemed to be the date of the commencement of the Partnership) and ending on December 31 (which shall also be the Partnership's fiscal year end). 7.1.4 "Minimum Gain" shall mean the taxable gain (whether taxable as capital gain or as ordinary income), which would be recognized by the Partnership if the nonrecourse debt of the Partnership were foreclosed upon and the Partnership's property securing such debt were transferred to the creditor in satisfaction thereof, but only to the extent of the excess of (a) t:he outstanding principal balance of such nonrecourse debt plus any accrued but unpaid interest thereon (whether or not added to principal) to the extent permitted by law, over (b) the adjusted basis of such property. 7.1.5. "Invested Capital" shall be the amount of capital contributed or deemed contributed to the Partnership by the Limited Partners pursuant to Paragraph 6.1 (entitled "Initial Capital). initial Le Agreement - Santa Ana 9.1,159.1,15 80A-103 7.1.6. "Invested Capital Balance" shall be the amount of a Partner's Invested Capital, plus the amount of any additional capital contributed by such Partner and reduced by the amount of cash distributed to such Partner pursuant to any provision of Paragraph 7.10 (entitled "Distributions of Cash from Operations"), Paragraph 7.11 (entitled Distribution of Cash from Capital Event) and subparagraph 11.3.3. 7.2. Allocation of Losses. For all Accounting Periods on a cumulative basis, except as otherwise specifically provided in this Agreement (including without limitation the provisions of Paragraphs 7.5 [entitled "Minimum Gain"], 7.6 [entitled "Recourse Debt Loss Allocation"]), 7.8 [entitled "Qualified Income Offset"], 7.12 [entitled "Allocations for Contributed Property; IRC Section 754 Adjustments"] and 7.15 [entitled "Revaluation Adjustment"]) (collectively such Paragraphs 7.5, 7.6, 7.8, 7.12 and 7.15 allocations shall be referred to as the "Required Allocations"), all losses (including all expense items separately stated on the Partnership's tax return) of the Partnership shall be allocated to the Partners in proportion to their then Partnership's Interests as set forth on Exhibit "A". 7.3. Allocation of Profits. For each Accounting Period, except as otherwise specifically provided in this Agreement (including without limitation the provisions of Paragraphs T5 [entitled "Minimum Gain"], 7.7 [entitled "Allocation of Ordinary Income"], 7.8 [entitled "Qualified Income Offset"], 7.12 [entitled "Allocations for Contributed Property; IRC Section 754 Adjustments"] and 7,15 [entitled "Revaluation Adjustment"]), all profits and gains (collectively "profits") (including all income items separately stated on the Partnership's tax return) of the Partnership shall be allocated to the Partners as follows: 7.3.1. First, if profits arise from the sale or other disposition of property with respect to which an investment tax credit was previously claimed, profits equal to the amount by which the basis of such property was reduced as a result of such claimed investment tax credit shall be allocated among the Partners in the same manner as such investment tax credit was previously allocated; 7.3.2. Second, to the same Partners, in the same amounts and in the same order of allocation as losses were theretofore allocated pursuant to Paragraph 7.2 (entitled "Allocation of Losses") and the Required Allocations, less the amount, if any, of profits previously allocated under this subparagraph 7.3.2 and/or the Required Allocations; and 7.3.3, Thereafter, to the Partners in proportion to their then Partnership Interests as set forth on Exhibit "A". 7.3.4, Notwithstanding anything to the contrary contained in this Agreement and except as provided in subparagraph 7.5.2 and 7.8.1, in the event any profits from the sale or other disposition of all or any portion of the Partnership's assets constitute interest income (including "imputed interest"), such interest income, for each year, shall be allocated among the Partners pro rata based upon the amount of deferred principal proceeds (exclusive of "imputed interest") received by each of the Partners pursuant to Paragraph 7.10 (entitled "Distributions of 1nitlal LP Agteement - Santa Ana 9.1.159.1.15 5 80A-104 Cash from Operations"), Paragraph 7.11 (entitled Distribution of Cash from Capital Events) and subparagraph 11.3.3. during each such year. 7.4. Allocation of Credits. All income tax credits of the Partnership shall be allocated in accordance with the ratio in which the profits of the Partnership are allocated (or would be allocated) among the Partners pursuant to Paragraph 73 (entitled "Allocation of Profits"), for the Partnership's taxable year during which the property which gives rise to the income tax credit is placed in service, regardless of whether the Partnership has a profit or a loss for such taxable year, However, if the ratio in which the Partners divide the profits of the Partnership changes during the taxable year of the Partnership in which such properly is placed in service, the ratio effective for the date on which the properly is placed in service shall apply. To the extent that any income tax credits allocated to the Partners are subject to recapture, such recapture income shall be allocated to the Partners to whom such tax credits were previously allocated. 7.5. Minimum Gain. Notwithstanding any other provision of this Agreement to the contrary and with a priority allocation pursuant to Treasury Regulations Section 1.704-1[b][4][iv][e]: 7.5.1. The Limited Partners shall not be allocated loss or deduction (or items thereof) attributable to nonrecourse debt which is secured by Partnership Property if such allocation would cause the sum of the deficit capital account balances of the Partner receiving such allocation (increased by the additional capital contributions such Partner is obligated to make pursuant to Paragraph 6.1 [entitled "Initial Capital"]) to exceed the Minimum Gain (determined at the end of the Partnership's taxable year to which such allocation relates) a Limited Partner's allocable share of the minimum gain shall be equal to the product of (a) the Minimum Gain, times (b) such Partner's then Partnership Interest. 7.5.2. The Partners with deficit Capital Account balances resulting in whole or in part from allocations of loss or deduction (or item thereof) attributable to nonrecourse debt which is secured by Partnership properly shall, to the extent possible, be allocated income or gain (or item thereof) until the sum of such deficit Capital Account balances equals the Minimum Gain, 7.5.3. For purposes of computing the sum of the Partners' deficit Capital Account balances, if any property (including cash) is held by the Partnership at the end of the Partnership taxable year and there is a reasonable expectation that such property will be distributed to a Partner (other than in liquidation of the Partnership) prior to a corresponding increase in such Partner's Capital Account, such property shall be treated as having been distributed to such Partner on the last day of such taxable year, 7,5A, The Minimum Gain shall be reduced by the cost of any capital improvements to be made to the subject property and the amount of any principal payments to be made with respect to the non recourse debts secured by such property to the extent there is a Initial LP Agreement - Santa Me 9.1.159. 1.15 80A-105 reasonable expectation that such improvements or payments would reduce the Minimum Gain below the sum of the deficit Capital Account balances. 7.6. Recourse Debt Loss Allocation. The allocation of loss or deduction (or items thereof) not attributable to nonrecourse debt which is secured by Partnership property shall not be made to a Partner if such Partner has a deficit Capital Account balance. Any such loss shall be. allocated first among the Partners with positive Capital Account balances (and among them in proportion to their then positive Capital Account Balances) and then to the Administrative General Partner (and among them in proportion to their then respective Partnership Interests). Furthermore, losses attributable to nonrecourse liabilities of the Partnership where a Partner has economic risk of loss shall be allocated as required pursuant to Treasury Regulations Section 1.704-1(b)(4) (iv)(g). 7.7. Allocation of Ordinary Income. Notwithstanding anything to the contrary contained herein, any gain which is taxable as ordinary income as a result of depreciation or cost recovery taken by the Partnership shall be allocated among the Partners in the proportion that depreciation or cost recovery deductions were previously allocated among the Partners. 7.8. Qualified Income Offset. Notwithstanding anything to the contrary contained herein, allocations of profits, gain and losses to the Partners shall be made in a manner to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d). It is the Partners' intent that the following provisions, to the extent permitted by Treasury Regulations Section 1.704-1(b)(2)(ii)(d), shall not affect (a) losses or deductions (or items thereof) attributable to nonrecourse debt which is secured by Partnership property and/or (b) the priority allocation, if any, pursuant to subparagraph 7,5.2, In furtherance thereof, the following provisions shall apply to the extent required pursuant to the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d). 7.8, I. Losses shall not be allocated to any Partner if such allocation would, together with any decrease (and increase) of such Partner's Capital Account pursuant to the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6), cause or increase a deficit balance (in excess of any limited dollar amount of such deficit that such Partner is obligated to restore which shall include the amount of any Partner's share of minimum gain as provided by the provisions of Treasury Regulations Section 1.704-1[b][4][iv](fJ) in such Partner's Capital Account as of the end of the Partnership's taxable year to which such allocation relates. A Partner's Capital Account adjusted as provided by this subparagraph 7.8.1 (including any obligation to restore any deficit) shall be referred to as the "Adjusted Capital Account". 7.8.2. Any losses not allocable to a Partner pursuant to the foregoing subparagraph shall be allocated to such Partners who have positive Adjusted Capital Accounts in proportion to their respective positive Adjusted Capital Accounts, with any losses in excess of such positive Adjusted Capital Accounts, being allocated to the Administrative General Partner (and among them in proportion to their then respective Partnership Interests. 7.8.3. If a Partner unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulations Section 1,704-1(b)(2)(ii)(d)(4), (5) and/or (6), Initial L9 Agreement - Santa Ana 9.1.159.1.15 7 80A-106 then such Partner will be allocated items of income and gain in an amount and manner sufficient to eliminate any deficit balance in such Partner's Adjusted Capital Account as quickly as possible. 7.9. IRC Section 704 Modifications. If the General Partner receives the written opinion of tax counsel to the Partnership that the allocations of income, gain, loss, deduction or credit (or items thereof) would not fully conform to IRC Section 704(b), the Administrative General Partner is directed to make such allocations and/or amendment to this Agreement as advised by such tax counsel but only so long as none of the Partners would be materially adversely affected thereby, A Partner shall be deemed to be "materially adversely affected thereby" only if the effect of such allocation or amendment would be to cause such Partner to receive Distributable Cash in a manner inconsistent with the Partners' intentions as evidenced by this Agreement. It is the further intent of the Partners that the Administrative General Partner shall cause, to the extent permitted pursuant to the provisions of Treasury Regulations Section 1.704-1(b), items of income, gain, loss and deductions not required to be allocated in accordance with the Required Allocations to be allocated among the Partners to minimize the differences between the allocations provided by Paragraphs 7.2 (entitled "Allocation of Losses") and 7.3 (entitled "Allocation of Profits") and the allocations pursuant to the Required Allocations. Any allocation made pursuant to this Paragraph shall supersede any allocation otherwise provided in this Agreement and no approval of any Partner shall be required. The Partners agree to promptly execute any amendment to this Agreement pursuant to the provisions of this Paragraph and upon failure to do so, the Administrative General Partner, as the Limited Partners' attorney -in -fact, is authorized to execute any such amendment on behalf of the Limited Partners. 7,10. (Distribution of Cash from Sales/Refinance. Except as required under paragraph 7.10.9 and pursuant to subparagraph 113.3, for each Accounting Period, Distributable Cash shall be distributed to the Partners as follows: 7.10,1. First, to payment of interest on partner's loans (if any); 7.10.2, Second, to payment of the principal of partner's loans (if any); 7.10.3. Third, to the return of "New Money" contributed pursuant to paragraph 6.8 (if any); 7.10.4. Next to payment of a 30% return on the New Money calculated from the date contributed until the date returned; 7.10.5. Next, to the Original Partners (and among them in proportion to their then respective Invested Capital Balances) until each Partner has received an amount of cash equal to the amount of his then Invested Capital Balance; 7.10.6. Next, to the Limited Partners until the Limited Partners have received an overall annualized return of 18% (including previous distributions from operations); ]adtial LP A9#cement - Santa an. 9.1.159.1.15 0 80A-107 7.10.7 Next, to the Administrative General Partner until the Administrative General Partner receives a distribution of 10% of the sum of 7.10.E and 7.10.7, 7.10.8 Thereafter, to the Limited and Administrative General Partner simultaneously in the ratio of 90/10 respectively, 7.10,9. Notwithstanding anything to the contrary contained in this Agreement, if any Distributable Cash constitutes interest income received in connection with the sale or other disposition of all or any portion of the Partnership's assets (including "imputed interest"), cash equal to such interest received by the Partnership shall be distributed, during each year, among the Partners in the same ratio as the principal amount of such installment sale is distributed to the Partners during such year and such distribution shall not be treated as a distribution of Distributable Cash pursuant to subparagraphs 7.10.3 and 7.10,4; 7.10.10, Distribution of Cash from-0 aerations, All periodic Distributions from Operations will be made in accordance with the partners interests in the partnership per Exhibit A, Column 1 until the limited Partners have received a 9% cash on cash return. The Partnership is authorized to execute a Note and Mortgage in order to secure a loan to be insured by the Secretary of Housing and Urban Development and to execute a Regulatory Agreement and other documents required by the Secretary in connection with such loan. Any incoming general partner shall, as a condition of receiving an interest in the Partnership, agree to be bound by the Note, Mortgage, and Regulatory Agreement and other documents required in connection with the PHA insured loan to the same extent and on the same terms as the other general partners. Upon any dissolution, no title or right to possession and control of the Project, and no right to collect the rents therefrom, shall pass to any person who is not bound by the Regulatory Agreement in a manner satisfactory to the Secretary, 7.10.11 Next, the Administrative General Partner will receive a distribution of 10% of the sum of 7.10.10 and 7.10.11. 7.10.12Thereafter, in the ratio of Exhibit A, Column 2. 7,11, Allocations for Contributed Property; IRC Section 754 Adjustments. If any Partner contributes any property to the Partnership, gain or loss with respect to such property on the sale or other taxable disposition of such property and the depreciation or cost recovery deductions for such property shall be allocated to the Partners as required in IRC Section 704 (c). To the extent required pursuant to Treasury Regulations Section 1.704-1 (b) (2) (iv) (m), the Partnership gain or loss, with respect to a Partner for whom the provisions of IRC Section 734 (b) or Section 743 (b) are applicable, shall be allocated in accordance with such provisions. Initial LP AgrOamant - SanLt Ana 9.1.159.1.15 7.12. Identity of Distributees. Distributions shall be made only to persons who, according to the books and records of the Partnership, are the owners of record of partnership interest on a date to be determined by the Administrative General Partner. Neither the General Partners nor the Partnership shall incur any liability for making distributions in accordance with the preceding sentence, whether or not the General Partners has knowledge or notice of any transfer of ownership of any partnership interests. 7.13. Sharing Between Transferor and Transferee. If an interest in the Partnership is transferred, the income, gains, losses and deductions allocable to the interest transferred for the Accounting Period during which the transfer occurred will be allocated between the transferor and transferee of the interest in proportion to the time during the Accounting Period that the interest was owned by the transferor and transferee. Credits shall be allocated to the party who owned the interest at the time that the property giving rise to the credit was placed in service. Each transferee will be credited with the capital account of the transferee's transferor. If a transferor transfers less than all of the transferor's interest in the Partnership, the capital account will be allocated in proportion to the fraction of the interest respectively transferred and retained. 7.14. Revaluation Adjustment. 7.14.1. The Administrative General Partner, upon advice of the Partnership's tax counsel that the Partnership is authorized pursuant to the provisions of Treasury Regulations Section 1.704-1(b) (2)(iv)(f) and that it is in the Partners' interest to do so, shall cause an increase or decrease in the Partners' Capital Accounts to reflect a revaluation of Partnership property (including intangible assets such as goodwill) on the Partnership books. Any such revaluation shall be made strictly in compliance with the provisions of Treasury Regulations Section 1.704-1(b)(2) (iv)ft including without limitation: (a) such adjustments shall (i) be based on the fair market value of Partnership properly (as agreed to by the Partners (as hereinafter provided) and taking IRC Section 7701 [g] into account) on the date of adjustment and (ii) reflect the manner in which the unrealized income, gain, loss or deduction inherent in such property (that has not been previously reflected in the Capital Accounts) would be allocated among the Partners if there were a taxable disposition of such property for its fair market value at the date of adjustment; (b) the Capital Accounts shall be adjusted in accordance with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization gain or loss (all as computed for book purposes) with respect to such property following the date of adjustment; and (c) the Partners' shares of depreciation, depletion, amortization, gain or loss (all as computed for tax purposes), with respect to such property, shall be determined so as to take account of the variation between the adjusted tax basis and book value of such property in the same manner as under IRC Section 704(c) following the date of adjustment. 7.14.2. In accordance with the provisions of Treasury Regulations Section 1,704-1(b)(2)(iv)(g), the amount of book depreciation, depletion or amortization, for a period, with respect to any Partnership Properly, is the amount that bears the same relationship to the book value xnitdal W AgtOemene - s3nea ana 9.1.159.1,15 3.0 80A-109 of such property as the depreciation (or cost recovery deduction), depletion or amortization computed for tax purposes for such property, for such period, bears to the adjusted tax basis of such property. 7.14.3. For purposes of the foregoing, except as herein- after provided, the fair market value of any such Partnership Properly shall be equal to the amount determined by the General Partner as set forth in a written notice delivered by the Administrative General Partner to the Limited Partners (the "Notice"), Notwithstanding the foregoing, if those Limited Partners ("Dissenting Limited Partners") owning a majority of the Partnership Interests owned by all the Limited Partners object in writing to such fair market value within 10 days of delivery of the Notice, then the fair market value of such property shall be determined by the mutual agreement of the Dissenting Limited Partners and the Administrative General Partner. If they cannot so agree, then the fair market value shall be determined by a qualified appraiser selected by the mutual agreement of the Administrative General Partner and the dissenting Limited Partners (and if they are unable to agree on such selection, the appraiser shall be selected by the American Arbitration Association or any successor organization thereto). All appraisal costs shall be paid by the Partnership. 8. Management. 8.1. Authority of General Partners. The Administrative General Partner and the Managing General Partner, if so named at this time, shall each have complete power of management of the Partnership and shall have authority to act on behalf of the Partnership in all Partnership matters including without limitation the power to execute notes, deeds of trust, contracts and leases; to assume direction of business operations and the Administrative General Partner and the Managing General Partner, if so named at this time, shall each have all rights, powers and authority generally conferred by law or necessary, advisable or consistent with accomplishing the purpose of the Partnership as set forth in Article 4 of this Agreement. During the operation phase the Managing General Partner shall be primarily responsible for the Partnership's operations. The Managing General Partner when entered into the Agreement shall perform other tasks and duties as may be required for non-profit general partners in order to maintain property tax abatement under the welfare exemption of the California Revenue and Tax Code and will perform all duties to qualify as a Managing General Partner under rule 140.1 adopted by the Board of Equalization each year. 8.2. Restrictions. The Administrative General Partner shall have no authority to (a) do any act which would make it impossible to carry on the ordinary business of the Partnership; (b) do any act in contravention of this Agreement; (c) possess Partnership Property or assign the right of the Partnership in any Partnership Property for other than a Partnership purpose; (d) obligate the Partnership as a surety or guarantor, endorser, or accommodation endorser for any other person or firm; or (c) make an assignment of the Partnership assets for the benefit of creditors. Initial LO Agreement - Santa Ma 9.1.159.1,15 1] 80A-110 8.3. Approval Rights. The Limited Partners shall have the right, by vote of more than 50% of the Limited Partners' Interests, as shown on Exhibit "A", to approve the following matters affecting the basic structure of the Partnership: 8.3.1. The dissolution and winding up of the limited partnership, 8.3.2. The merger of the limited partnership or sale, exchange, lease, mortgage, pledge, or other transfer of, all or a substantial part of the assets of the limited partnership other than in the ordinary course of its business. 8.3.3. Incur indebtedness by the limited partnership other than in the ordinary course of business. 8.3.4. A change in the nature of the business. 8.3.5. Transactions in which the General Partners has an actual or potential conflict of interest with the limited partners or the partnership. 8.3.6. The removal of a general partner, 8.3.7. An election to continue the business of the Limited Partnership other than under the circumstances described in subparagraph 8.3.9 or 8.3.10, 8.3.8. The admission of a general partner other than under the circumstances described in subparagraph 83.9 or 83.10, subject to the unanimous vote requirement of paragraph 11.6. 83.9. The admission of a general partner or an election to continue the business of the limited partnership after a general partner ceases to be a general partner other than pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act where there is no remaining or surviving general partner, subject to the unanimous vote requirement of paragraph 11.6 8.3.10,The admission of a general partner or an election to continue the business of the limited partnership after the general partner ceases to be a General Partner pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act where there is no remaining or surviving general partner, subject to the unanimous vote requirement of paragraph 11.6 All other matters are within the discretion of the Administrative General Partner and the Limited Partners shall have no right to vote on those matters. 8A. Meetings of Partners. Meetings of Partners shall be held at the principal place of business of the Partnership. Meetings shall be held only when called by either the Administrative General Partner or by Limited Partners representing more than 10% of the Limited initial LP Agreement - Santa Ma 9.1. 159.1.15 12 80A-111 Partners` Interests, as shown on Exhibit A. Meeting notices and procedures shall be in conformity with California Corporations Code Section 15637, 8.5 Power of Attorney. The Limited Partners hereby irrevocably constitute and appoint the Administrative General Partner as his attorney to make, execute, acknowledge, and record any instrument which may be required by law to be filed by the Partnership, and any and all deeds, leases, deeds of trust, loan applications, promissory notes, loan agreements, assignments of lease, or other instruments or documents which the Administrative General Partner deems appropriate or necessary to carry out the purposes of this Agreement. The foregoing power of attorney shall survive the delivery of any assignment by a Limited Partner of the whole or any portion of his limited partner's interest, and any assignee of a Limited Partner hereby constitutes and appoints the Administrative General Partner as his attorney in the same manner and with the same force as if such assignee had executed this Agreement. 8.6. Other Activities. The Administrative General Partner shall devote so much of its time and attention to the Partnership business as it deems necessary or advisable under the circumstances. Any partner, General or Limited, may engage in or possess an interest in other partnerships and other business ventures of every nature and description and neither the Partnership nor the Partners shall have any right in such independent ventures or to the income or profits derived therefrom. Neither the General Partners or any Limited Partner shall be obligated to present any particular investment opportunity to the Partnership, even if the opportunity is of a character which, if presented to the Partnership, could be taken by the Partnership and the Partner receiving the opportunity shall have the right to take it for his or her own account or to recommend it to others. The fact that a Partner is employed, or is directly or indirectly interested in or connected with any firm or corporation employed by the Partnership to perform a service, shall not prohibit the General Partners from employing such person, farm or corporation, or from otherwise dealing with him or it. Neither the Partnership nor the Partners shall have any rights in or to any income or profits derived from such employment, nor shall such employment change the status of the partner as a Limited Partner hereunder, 8.7. Scope of Authority. Except as herein set forth, the Administrative General Partner shall have the right to cause the Partnership to enter into transactions with other persons, firms or entities with which the Administrative General Partner is affiliated, and to receive compensation, directly or indirectly through such affiliated corporation or other persons, for services rendered in connection with the Partnership from any source or transaction. 8.8. Limitation on Liability. The Partners acknowledge and agree that it is their intent that the General Partners shall not be liable, responsible or accountable in damages or otherwise, to any third person nor to the Partnership, nor to the other Partners for any loss, liability, obligations, penalties, actions, judgments, proceedings, damages, costs or expenses of any kind or nature whatsoever, including without limitation, all costs and expenses of defense, appeal and settlement, in any way relating to or arising out of or alleged to relate or arise out of any action or inaction on the part of the Partnership or the General Partners, except for the willful misconduct, gross negligence or reckless disregard by the General Partners of its duties. The Partnership shall Znieial L15 Agreement - Santa Ana 9.1..199.1.15 13 80A-112 indemnify the General Partners and hold it harmless from any of the foregoing, The General Partners is hereby authorized to withhold distributions if they determine in their sole discretion that such funds should be held as a reserve for indemnification, 8.9. Reimbursement of Expenses. The Administrative General Partner shall be entitled to reimbursement for all legal and auditing fees and expenses of agents and advisors, costs of insurance, and the cost of preparing the Partnership's tax returns. The Administrative General Partner shall also be entitled to reimbursement from the Partnership for direct and specific project expenses, overhead and administration costs, which shall include expenses connected with the distribution to and communication with Partners. The Administrative General Partner shall be entitled to a fee equal to 5% of the gross annual revenues as an asset/property management fee. In addition an affiliated company of the Administrative General Partner will act as a real estate broker and will receive a commission not to exceed I % of the price on the purchase and on the sale of the property, No Limited Partner shall be entitled to any share of any such sums paid to the Administrative General Partner or its affiliate. 8.10. Administrative and Development Tees. The General Partners shall not be entitled to any compensation for time, labor or overhead, except as specifically provided for in this Agreement. 9. Transferability of Partners' Interest. 9.1, Permitted Transfers. The interest of a Partner may be sold or transferred only: (a) to an entity in which the transferring Partner owns a 5 1 % or greater interest; (b) to the Partnership or to any Partner; (c) by testamentary disposition or by gift to a Partner's spouse or issue or to a trust fur such spouse or issue; (d) upon the sale of a Limited Partnership interest to a non partner, subject to the provisions of Paragraph 9.2. 9.2. Sale of Limited Partnership interest. Except as set forth in Section 9.1.1, 9,2.2 or 9.2.3, the interest of a Partner in the Partnership only in its entirety, and on the following conditions. Any attempted transfer to any other person, including a transfer by operation of law, shall be void. 9.2.1, If any Partner ("Selling Partner") receives a bona fide offer to purchase all or any part of his Partnership interest, which offer the Selling Partner wishes to accept, the Selling Partner shall immediately notify the other Partners ("Remaining Partners") of the offer. The offer shall be communicated as provided in Paragraph 13 and shall include, the terms and conditions of the offer, the name of the person malting the offer, the date on which the offer expires, and all other relevant information concerning the offer. Each Remaining Partner shall have 20 days after receipt of the offer, to match the price in the offer by giving notice in writing to the Administrative General Partner specifying how much of the Selling Partner's interest he wishes to purchase, Initial 1,11 Agreement - SInta Ana 9. 1. 159. 1. 15 1.4 80A-113 9.2.2. If the total of the offers of the Remaining Partners offering to purchase ("Accepting Partners") equals or exceeds the interest the Selling Partner offered to sell, the Accepting Partners shall become bound to purchase, and Selling Partner shall become bound to sell his interest to the Accepting Partners on the terms of the offer. 'the portion of the price payable by each of the Accepting Partners shall be the several, and not joint, obligation of each of the Accepting Partners, and shall be paid to the Selling Partner. If the total of the offers of the Accepting Partners equals the interest the Selling Partner offered to sell, each Accepting Partner shall purchase the proportion of the Selling Partner's interest specified in his notice. If the aggregate of the offers of the Accepting Partners exceeds the interest the Selling Partner offered to sell, each Accepting Partner shall purchase that proportion of the offered interest equal to such Accepting Partner's interest in the Partnership. No later than 7 days after expiration of the period for the Remaining Partners to exercise their rights under this article, the Administrative General Partner shall advise the Partners of the amount payable by each Accepting Partner, and the Administrative General Partner shall cause the interest of the Selling Partner to be eliminated and the interest of each of the Accepting Partners to be increased by the respective portion of the Selling Partner's interest purchased. 9.2.3. If the Remaining Partners do not offer to purchase all of the offered interest of Selling Partner within 20 days after receipt of the Proposed Offer, the Selling Partner may disregard all offers received from the Remaining Partners and may, within 30 days after the 20-day period, dispose of his interest on the terms of the offer, provided that such sale shall not be at a lower price or upon terms more favorable to the buyer than those specified in the offer, If the Selling Partner can not sell his interest within said 30 day period, he may then only sell his interest after re -offering it to the other Partners as set forth above. 9.3. Substituted Limited Partner. No Limited Partner shall have the right to substitute an assignee for his capital contribution, and no transferee pursuant to paragraphs 9.1 and 9.2 of the whole or any portion of the Limited Partner's interest in the Partnership shall become a substituted Limited Partner unless: (a) such assignee delivers to the Administrative General Partner an agreement in writing to assume all of the obligations of Selling Partner under this Agreement; and (b) the Administrative General Partner consents in writing to such substitution; the Administrative General Partner may grant or withhold its consent in its sole and absolute discretion. 9.4. Election of General Partner. The Administrative General Partner may elect to treat and assignee who has not become a substituted limited partner as a substituted limited partner in the place of his assignor should the Administrative General Partner deem, in its sole discretion, that such treatment is in the best interests of the Partnership. 9.5. Non -Termination, The Partnership shall not be terminated by the death, insanity, bankruptcy, insolvency, dissolution, withdrawal, or expulsion of any Limited Partner, nor Initial LP Agreement - Santa Ma 9.1.159.1.15 15 80A-114 by the assignment by any Limited Partner of his interest or by the admission of new Limited Partners. 9.6. Death or Incompetency of Limited Partner. Upon the death or legal incompetency of a Limited Partner his personal representative shall have all the rights of a limited partner for the purpose of settling or managing his estate. 9.7. Other Limited Partners. Upon the bankruptcy, insolvency, dissolution or other cessation of a corporate limited partner, the authorized representative of such entity shall have the rights of a limited partner to effect the orderly disposition of said Limited Partner's interest. 10. Financial Information. 10.1. Books of Account. The Administrative General Partner shall keep accurate books of account in which all matters relating to the Partnership, including all income, expenses, assets, and liabilities shall be entered. Said books shall be kept on a cash basis and shall be opened to examination by any partner at any time. 10.2. Accounting. A financial statement describing the condition of the partnership, as of the close of business on the last day of the calendar year and such additional information as may be needed by the partners to file their tax returns, shall be rendered to each partner within 90 days thereafter. Except for substantial errors brought to the attention of the Administrative General Partner within 30 days of its rendition, such accounting shall be final and conclusive as to all partners. 10.3. 'Tax Matters Partner, AMCAL Multi -Housing Two, LLC, shall be the "Tax Matters Partner" pursuant to IRC Section 6231 (a) (7). The Tax Matters Partner shall keep the other partners apprised of all proceedings regarding Partnership tax items. The Tax Matters Partner shall not enter into a settlement agreement with the Internal Revenue Service on behalf of any partner without that partner's consent. 10.4. Accounting Decisions. All decisions as to accounting matters, except as specifically provided to the contrary in this Agreement, will be made by the Partnership's accountants subject to the approval of the Administrative General Partner, 10.5. Federal Income `Tax Elections. The Administrative General Partner shall cause the Partnership to make an election (or consent) to any such election by a Partner) pursuant to any of IRC Sections 732(d) and/or 754 (or corresponding provisions of succeeding law or state law), as may be determined by the Administrative General Partner in the Administrative General Partner's reasonable discretion, except to the extent otherwise determined by this Agreement. 11. Dissolution. initial T& 11greemeat'. • Sunla Ann 9, 1, 159. 1. 15 .6 80A-115 I I.I. Mutual Agreement. The Partnership shall be dissolved upon: (a) the vote of the Limited Partners as provided in paragraph 8.3, or (b) upon sale of the Partnership Property; provided, however, if the Partnership receives a promissory note as pant of the consideration for the Partnership Property, the Partnership shall continue for the sole purpose of collecting and enforcing such obligation. The Partnership shall engage in no further business thereafter other than that which is necessary to wind up the business and distribute the assets. 11,2. Proceedings Upon Dissolution. Upon the dissolution of the Partnership, the Administrative General Partner shall notify partners of such dissolution, wind up the affairs of the Partnership, liquidate the assets of the Partnership, pay or provide for the payment of all the debts, and divide the surplus, if any, among the partners according to the provisions of paragraph 113 hereof, subject to such adjustment as may be required by the Partnership's accountant in accordance with generally accepted accounting principles. If after the liquidation and distribution, any Partner or Partners would have a negative Capital Account, net income, if any, resulting from the liquidation shalt first be allocated to that Partner or those Partners on a pro rata basis in the arnount of the deficit and the remaining net income to the Partners in proportion to their receipt, or entitlement to receipt of the proceeds of liquidation. If after that allocation a Partner has a negative Capital Account, that Partner shall contribute to the Partnership cash in the amount of the remaining deficit. 11.3, Distributions on Dissolution. The assets of the Partnership shall be applied in the following order of priority: 11.3.1, To the payment of debts and liabilities of the Partnership (other than any loans and advances that may have been made by any of the Partners, or amounts owing to any of the Partners) and the expenses of liquidation; 11,12, To the setting up of any reserves that the Administrative General Partner may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership, and, at the expiration of such period as the Administrative General Partner shall deem advisable, to distribute the balance thereafter remaining in the manner hereinafter provided; 11.3.3. Any balance then remaining will be distributed to the Partners in accordance with their respective Capital Accounts, provided that profits shall first be allocated in accordance with the provisions of Paragraph 7.3 (entitled "Allocation of Profits"), in the manner as if all the Distributable Cash were then distributed in accordance with the provisions of Paragraph 7.11 (entitled "Distributions of Cash from Capital Event"). 11.4. Assets Other Than Cash. Assets of the Partnership may be distributed in kind on the basis of the then fair market value of such assets as determined by agreement of the Partners, and if no such agreement of value is reached within 10 days, then such value shall be determined by an independent appraiser appointed by the American Arbitration Association upon application of the Administrative General Partner (the cost and expense of said appraisal to be borne by the Partnership). If agreed to by all the Partners, distributions in -kind will be made to the Initial IR Agrt.m nl - Santa Ana 9.1.159.1.1.5 17 80A-116 Partners as tenants -in -common. For purposes of making such distribution only, the unrealized profit or loss on any such asset (based on its fair market value) shall be first allocated among the Partners and the distribution of the asset shall be treated as a distribution of cash equal to the fair market value of such asset. 11.5. Liquidation of Partner's Interest. Upon liquidation of any Partner's interest in the Partnership, the liquidation distributions shall be made in accordance with the positive Capital Account balances of the Partners adjusted as otherwise required by the provisions of this Agreement. A liquidation of a Partner's interest shall occur as required pursuant to Treasury Regulations Section 1.704-1 (b)(2)(ii)(g), 11,6. Reconstitution of Partnership. The Limited Partners may, upon the occurrence of any of the events described in paragraphs 8.3.6 or 11.1, reconstitute the business of the Partnership in a new limited partnership on the terms as this Agreement provided that if all of the General Partner cease to be a General Partner other than pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act, and there is no remaining or surviving General Partner, admission of a new General Partner or a decision to continue the Partnership business by reconstituting the Partnership must be approved by the affirmative vote of all of the Limited Partners. Expenses incurred in the reformation, or attempted reformation, of the Partnership shall be deemed expenses of the Partnership. 11.7. Partnership Assets. Each partner shall look solely to the assets of the Partnership for the return of his investment, and if the assets of the Partnership remaining after the discharge of all debts and liabilities of the Partnership are insufficient to return the investment of each Limited Partner, such Limited Partner shall have no recourse against the Administrative General Partners or any other Limited Partner, 12. Books and Records. The Administrative General Partner shall keep at the partnership's office the following Partnership documents; 12.1. A current list of the full name, and last known business or residence address of each Partner, together with the contribution and share in profits and losses of each partner. 12.2. A copy of the Certificate of Limited Partnership and all Certificates of Amendment, and executed copies of any powers of attorney pursuant to which any certificate has been executed. 12.3. Copies of the Partnership's federal, state and local income tax or information returns and reports, if any, for the 6 most recent taxable years, 12.4. Copies of the original Agreement and all Amendments to the Agreement. 12.5. Financial statements of the Partnership for the 6 most recent fiscal years. IniLial LP agmeemOnL - Santa A l 9.1.159.1.15 as 80A-117 12.6. The Partnership's books and records for at least the current and past 3 fiscal years. Upon the request of a Limited Partner, the Administrative General Partner shall promptly deliver to the requesting Limited Partner, at the expense of the Partnership, copies of the documents described in items 12,1, 12.2, or 12A above. All other documents may be inspected and copied by a Limited Partner during normal business hours upon reasonable, prior request. Copies of any amendments to this Agreement signed pursuant to the Administrative General Partner' power of attorney shall be promptly delivered to all Partners. 13. Notices. Any notices required to be given under this Agreement shall be in writing and signed by or on behalf of the party giving the notice sent by prepaid certified or registered mail, return receipt requested, to each partner at the address set forth after his signature or such other address as may be designated by notice given as aforesaid. Service of notice shall be deemed to be effective as of the date shown on the receipt issued by the post office for such registered mail, and if such receipt is not returned, 48 hours after deposit in the United States mail. 14. Attorneys' Fees. If any party hereto files an action or proceeding concerning any provision of this Agreement or the rights and duties of any person in relation thereto, the party or parties in whose favor final judgment shall be entered shall be entitled to recover from the other party or parties his court costs and reasonable attorneys' fees. 15. Miscellaneous Provisions. 15.1, Entire Agreement. All of the agreements heretofore and contemporaneously made by the parties are contained in this Agreement and, except as provided in Paragraph 8.3 this Agreement cannot be modified in any respect except in writing executed by parties holding an aggregate majority of the Partnership interests. 15.2. Validity. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application or interpretation of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby and shall remain in full force and effect. 15.3. Waiver of Action for Partition. Each of the parties hereto irrevocably waives his right to maintain any actions for partition with respect to the Partnership Property and other investments of the Partnership. 15.4, Governing Instruments. In the event of any conflict between the provisions of this Agreement and any document executed or filed by the Administrative General Partner pursuant to the power of attorney granted to him this Agreement shall govern. 15.5. headings. The headings used herein are for convenience only and shall have no effect upon the interpretation of this Agreement. Whenever the context so requires, the initial LP Agreement - Santa Are 9.1,159.1.15 80A-118 singular number shall include the plural, the plural shall include the singular, the neuter gender shall include the masculine and feminine genders and vice versa, 15.6, Counterparts, This Agreement may be executed in counterparts, each of which so executed shall be deemed an original, and said counterparts together shall constitute one and the same document, 15.7. Binding Effect. This Agreement shall be binding on, and shall inure to the benefit of the heirs, legal representatives, successors, and permitted assigns of each party. 16. Limited Partners Representations. Each Limited Partner by signing below represents and warrants to the Partnership and to the Administrative General Partner that; 16.1. The Limited Partner has received such information about the partnership, as the Limited Partner deemed necessary to evaluate this investment, and a copy of this Limited Partnership Agreement, 16.2. That the Limited Partner is taking all of the Limited Partnership Interest (the "Units") listed after his name on Exhibit "A" for his own account and not as an agent, trustee, custodian or the like for any other person or with a view to or for sale in connection with a distribution thereof. Each Partner understands that the interest being purchased and sold hereunder has not been registered under the Securities Act of 1933, as amended, nor qualified under the California Corporate Securities Law of 1968, as amended, because the contemplated transaction constitutes a private offering within the meaning of Section 4(2) of the Securities Act of 1933 and Regulation D promulgated there Linder, and is exempt from qualification pursuant to Section 25102 (t) of the California Corporate Securities Law of 1968, as amended. 16.3. That the Limited Partner is taking the Units for investment purposes only and has no present intention to dispose of them to any other person. 16.4. That the Limited Partner has such knowledge and experience in financial and business matters that he is capable of evaluating the risks of the prospective investment, 16.5, That the Limited. Partner is a person who is able to bear the economic risk of the investment. 16.6. That the Limited Partner has an adjusted gross income of at least $30,000 in the year he is subscribing and a net worth of at least $60,000; or a net worth of $100,000 or three times the initial cash investment for the Units subscribed, whichever is greater; and 16.7. That the Administrative General Partner has trade available to the Limited Partner the opportunity to obtain any additional information, to the extent the Administrative General Partner possesses such information or can acquire without unreasonable effort or expense, necessary to verify the accuracy of any information contained herein; and Ynitial LP n3[eement `Junta Ana 9.1,159.1.15 20 80A-119 16.8. Each Partner has been fully advised of the facts respecting the formation of the Partnership and has been given the opportunity to consult his attorney with respect to the Partnership. Each Partner hereby agrees that the offer and sale of the interest to it does not involve any public offering of such interest; and 16.9. The Limited Partner understands that there is no public market for the Units and none is expected to develop and he must continue to bear the economic risk of this investment for an indefinite period. Initial LP Ageeement -Santa Ana 9.1.159.1.15 21 80A-120 Dated: September 1, 2015 General Partners: AMCAL Multi- sing Two LLC, a California limit inability company By: --- Percival Limited Partners: For: AMCAL Enterprises, Inc., a California corporation Arjun Nagarkatti, President initial W Agreement - Santa Ana A.1 .1 oS.l.xs 22 80A-121 EXHIBIT "A" AMCAL 1440 SANTA ANA FUND) L.P. CAPITAL CONTIUBUTION AND PARTNERSHIP INTEREST Column I Column 2 CAPITAL NAME OF PARTNER CONTRIBUTIONS % OF INTEREST % OF PROFIT AMCAL Multi -Housing Two LLC $ 1.00 1.00 1.00 an Administrative General Partner AMCAL Enterprises, Inc. $ 99.00 99.00 99.00 Limited Partner 'TOTAL: $ 100.00 100.00 100.00 initial 1.0 Aglaa... $Alit, Ana 9.1.159.1.15 23 80A-122 EXHIBIT " B" AMCAL 1440 SANTA ANA FUND, L.P. LEGAL DESCRIPTION All that certain real property situated in the County of Orange, State of California, described as follows: Parcel 1: The Easterly 112.51 feet of the Westerly 437 51 feet of that portion of land allotted to N.O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the Final Decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B" Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the center lines of First Street and Mc Clay Street, as shown on a Map filed in Book 47 Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860 Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mc Clay Street; Thence North 00 06' 40" West 398,34 feet to the point of beginning. Excepting therefrom, that portion of the North 71,00 feet as described in the Deed to the City of 1440 Santa Ana, recorded April 15, 1960 in Book 5196, Page 381 of Official Records. Parcel 2: A non-exclusive easement for ingress and egress over the South 25 feet of the Westerly 325 feet of that portion of the land allotted to N.Q. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: I.Adal by - saa. Ma 24 80A-123 Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 890 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397,90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mc Clay Street; Thence North 00 06' 48" West 398.34 feet to the point of beginning. Parcel 3 The Westerly 175.00 feet of the Easterly 375.00 feet of that portion of the land allotted to N.O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows; Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812,56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08' 20" West 812,54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06' 48" West 398.34 feet to the point of beginning. Excepting therefrom, the South 21 feet of the North 71 feet thereof. Parcel 4: A non-exclusive easement for ingress and egress over the South 25 feet of that portion of the land allotted to N,O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, Initial cn ngex¢ment - Santa Me 9. 1.159. 1.15 25 80A-124 California, described as follows Beginning at the intersection of the centerline of First Street and Mc Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17. Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812,56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mc Clay Street; Thence North 0° 0648" West 398.34 feet to the point of beginning. Excepting therefrom, the Easterly 375.00 feet Assessor's Parcel Number: 011-154-43 Snieial Lr l,gYeemeU - 6anca Na 9.1.159.1.15 26 80A-125 80A-126 EXHIBIT 3 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 Division Manager SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Govennnent Code Section 6103] LOAN AGREEMENT by and between the HOUSING AUTHORITY OF THE CITY OF SANTA ANA ACTING AS THE HOUSING SUCCESSOR AGENCY and AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership (1440 East First Street, Santa Ana, California) Dated: February 2017 80A-127 LOAN AGREEMENT HOUSING SUCCESSOR AGENCY FUNDS THIS LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of February , 2017, is made and entered into by and between the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic ("Agency"), and AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") with reference to the following: RECITALS: A. The Agency is authorized by the Community Redevelopment Law of the State of California (Health and Safety Code section 33000, et seq.) ("CRL") to expend funds to increase the supply of very low and low income housing available at affordable housing costs. In part to further this goal, the Agency has created the Merged Project Areas, within the City (the "Project Area"), and adopted a Redevelopment Plan for the redevelopment of the Project Area. In accordance with Section 33334.2, et seq., of the CRL, the Agency sets aside a portion of the tax increment revenues it receives from the Merged Project Area in a separate low and moderate housing fund, which the Agency uses for the construction, preservation, and rehabilitation of affordable housing for low income households. B. Developer requested financial assistance in connection with the proposed development of a sixty-nine (69) unit affordable workforce housing complex ("Project") to be located at 1440 East First Street, Santa Ana, California, and legally described within Exhibit A attached hereto and incorporated herein ("Property"). The residential units will be located within six (6) 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 (6) four -bedroom units, twenty-eight (28) three -bedroom units, and thirty-five (35) two -bedroom units (one being a manager's unit). Eight (8) 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 seating, BBQ's, 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. Developer will engage a qualified non- profit organization approved by the City (of which LifeSTEPS is hereby approved by the City) 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. C. The City of Santa Ana ("City") and the Housing Authority of the City of Santa Ana ("Housing Authority") reviewed 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 a conditional, pre -commitment letter evidencing the preliminary award of $6,195,000 of funds to the Project ("Agency Loan"), 80A-128 to be funded exclusively from the Low and Moderate Income Housing Asset Fund (the "LMIHAF") held by the Agency. D. The amount of the Agency Loan was determined based upon the City and Agency's review of the Developer's request for the receipt of the Agency Loan 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 Loan is not materially increased or extended. E. hi furtherance of the CRL and the Redevelopment Plan, Developer has applied to the Agency for a loan with which to: Provide deeper affordability and construct the improvements to the Property, and 2. Thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. F. The Agency, on certain terms and conditions, desires to make such Agency Loan to Developer in order to make possible the construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. G. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, Agency and Developer agree as follows: DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and/or as set forth in this Article 1. "Affordable Housing" means the total housing costs paid by a qualifying household, which shall not exceed the fraction of gross income specified, as follows, in accordance with Sections 50052.5 and 50053 of the Health & Safety Code: Very Low -Income Households. Thirty (30) percent of the income of a household earning fifty (50) percent of the Orange County median income adjusted for family size appropriate for the unit. Low -Income Households. Thirty (30) percent of the income of a household earning seventy (70) percent of the Orange County median income for for -sale units, and 80A-129 thirty (30) percent of the income of a household earning sixty (60) percent of the Orange County median income for rental units, adjusted in either case for family size appropriate for the unit. In the event of a conflict between the fractions specified in this definition and those found in Sections 50052.5 and 50053 of the Health & Safety Code, the fractions specified by State law shall control. "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the Agency, attached hereto and incorporated herein as Exhibit B. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the California Tax Credit Allocation Committee (TCAC), or by the State of California, as applicable. "Agency" means the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the CRL. The principal office of the Agency is located at 20 Civic Center Plaza, Santa Ana, California 92702. "Agency" shall also refer to the City where the context dictates, to the effect that City shall have all rights granted to the Agency hereunder. "Agency Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit C, to be executed by Developer pursuant to Section 5.13.1 in order to secure the Agency Loan Note. "Agency Loan" means a loan in the original principal amount of up to six - million, one -hundred and ninety-five thousand dollars ($6,195,000) to be made to Developer by the Agency to be funded exclusively from the Low and Moderate Income Housing Asset Fund held by the Agency. "Agency Promissory Note" means that certain promissory note for Agency Loan funds in the original principal amount of $6,195,000 in the form attached hereto as Exhibit D, and to be executed by Developer in favor of Agency to evidence the obligation of Developer to repay the Agency Loan through residual receipts as further described in the Agency Promissory Note. "Building Permit" means the building permit(s) issued by City and required for the construction. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. 80A-130 "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" shall also refer to the Agency where the context dictates, to the effect that the Agency shall have all the rights granted to the City hereunder. "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Agency Loan Agreement and Agency Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Developer" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Developer's Representative" shall mean an officer of the General Partner of Developer or his/her designee. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. "Event of Default" has the meaning set forth in Section 20.1. "General Partner" means AMCAL Multi -Housing Two LLC, a California limited liability company. "Governmental Authority" means any governmental or quasi - governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. Hazardous Material shall not include (i) construction products, household cleaners and office materials of the type and quantity ordinarily used in the normal construction, operation and maintenance of properties similar to the Project or (ii) small amounts of household mold to the extent promptly remediated upon discovery. 80A-131 "Housing Authority" means the Housing Authority of the City of Santa Ana, a public body, corporate and politic. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "HCD" means the California Department of Housing and Community Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements, as required through the City of Santa Ana Planning and Building Agency entitlement process. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non -recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Documents" or "Agency Loan Documents" means, collectively, this Agreement, the Agency Promissory Note, the Agency Deed of Trust, and the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the Agency reasonably requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HCD. Also may be referred to interchangeably in the Agency Loan Documents as "Area Median Income" or "AMP'. 80A-132 "Partnership Agreement" means the Agreement of Limited Partnership of AMCAL 1440 SANTA ANA FUND, L.P., dated as of September 1, 2015 attached herein as Exhibit H. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the Agency Deed of Trust" means the Senior Loan Deed(s) of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Developer pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached hereto as Exhibit E, as modified from time to time in accordance with this Agreement. "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 1440 East First Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Scope of Work/Schedule of Performance" means the detailed statement of the work to be performed by Developer on and to the Property pursuant to this Agreement, along with the Schedule of Performance setting forth timeframes for certain tasks, which document is attached hereto as Exhibit F. "Senior Lender" means a cormnercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender concurrent to the Agency Loan for payment of a portion of the acquisition and construction costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the first deed(s) of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. 80A-133 "Term of Affordability" means the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. 1.2 Sin¢ular and Plural Terms. Any defined term used in the plural in this Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. [RESERVED] 3. SCOPE OF WORK/PROJECT BUDGET A "Scope of Work" and "Schedule of Performance" for the Property is attached hereto as Exhibit F. Any material change to the Scope of Work/Schedule of Performance requested by the Developer shall be subject to the prior written approval of the City Project Manager. The Scope of Work/Schedule sets forth the construction work that shall be performed on the Property and timeframes for approvals and such work. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit E ("Project Budget"). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the City Project Manager. 4. [RESERVED] 5. AGENCY LOAN: The Agency Loan shall be evidenced by the Agency Promissory Note in the form attached hereto as Exhibit D. The Agency Loan shall be secured by the Agency Deed of 80A-134 Trust in the form attached hereto as Exhibit C. The terms and conditions of the Agency Loan are as set forth in the Agency Promissory Note. The term of affordability for the Project is fifty-five (55) years from the receipt of Certificate of Occupancy for the Project, or repayment of the Agency Loan, whichever is longer. 5.1. Agency Funds: A. Amount and Purpose. Subject to the terms and conditions of this Agreement, Agency agrees to make a loan to Developer from the Low and Moderate Income Housing Asset Fund ("LMIHAF") in the principal amount of up to $6,195,000.00 for the construction and other costs of the Project. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent. Agency's obligation to disburse the loan is subject to the satisfaction of the following conditions precedent: (a) Housing Authority. Review and approval of the documents evidencing the Agency Loan by the Housing Authority of the City of Santa Ana acting as the Housing Successor Agency. (b) Code Com lin ante. Compliance with California Health and Safety Code and applicable regulations set forth in Section 34176. (c) Environmental Review. Compliance with and completion of environmental review of the Project pursuant to the California Environmental Quality Act ("CEQA") and approval thereof. (d) Affordability Restrictions. The funding of $6,195,000 is from the Low and Moderate Income Housing Asset Fund, which requires legal restrictions that the Agency cannot amend or repeal. Sixty-eight (68) of the sixty-nine (69) "Housing Units" at the Project shall and will be restricted to "Affordable Rent" as defined by the California Tax Credit Allocation Committee (TCAC) Regulations for a period not less than fifty-five (55) years pursuant to conditions, covenants and restrictions recorded against the Project in the Official Records, County of Orange, California. Thirty-four (34) of the sixty-eight (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 reasonably determine that it is necessary for a lesser number of Housing Units at the Project to be restricted to households earning 30% or less of AMI 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. (e) Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signatme(s) acknowledged where necessary, each of the following documents: (i) this Agency Loan Agreement; 80A-135 (ii) the Agency Promissory Note ($6,195,000); (iii) the Agency Deed of Trust; and, (iv) the Affordability Restrictions on Transfer of Property (f) Title Insurance. Agency shall have received an American Land Title Association (ALTA) Extended (LP-10) Loan Policy (6-17-06), or evidence of a commitment therefore satisfactory to Agency, issued by Commonwealth Land Title Insurance Company and in form and substance satisfactory to Agency, together with all endorsements and binders required, naming Agency as the insured, in a policy amount of not less than the total Agency Loan Amount, showing Developer as the fee owner of the Property and insuring the Agency Deed of Trust to be a valid priority lien on the Property. This Agreement, the Agency Promissory Note, and the Agency Deed of Trust shall all be subordinate to the Senior Loan Note and Senior Loan Deed of Trust. (g) Affordability Restrictions on Transfer of Property. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit B, the Affordability Restrictions on Transfer of Property pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, sanitary and affordable rental housing pursuant to the affordability requirements of California Health and Safety Code ("H&S") sections 50052.5 and 33334.3, as applicable. The Agency's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated. (h) Documents Recorded. This Loan Agreement, the Agency Deed of Trust, and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (i) Request for Notice. For the benefit of Agency, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default"). 0) Insurance. Agency 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. (k) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct in all material respects as of the Close of Escrow as though made on and as of that date, and if requested by the City Project Manager, Agency shall have received a certificate to that effect signed by Developer's Representative. (1) No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the City Project Manager, Agency shall have received a certificate to that effect signed by Developer's Representative. 80A-136 (m) The Agency's obligation to provide the Agency Loan is and shall remain subject to all covenants, conditions, and restrictions set forth in this 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. 6.2 Disbursement Procedures for Loan. The Agency Loan proceeds shall be disbursed through Escrow to finance the acquisition, development and construction of the Project (as evidenced in Exhibit E). The Agency Loan proceeds shall not be used for any purpose other than for acquisition and predevelopment and construction related costs, including Developer fee and soft costs related to the development of the Project (costs all subject to Agency's prior review). 6.3 First Disbursement. Agency's obligation to make the first disbursement of the Loan is subject to satisfaction of the following conditions precedent: (a) All grading permits shall have been issued or 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 the final budget consistent with the approved Proforma (or as otherwise approved by the Agency). (c) Developer shall have provided evidence to the Agency that the Developer has obtained insurance policies and certificates or endorsements acceptable to the Agency, as described in this Loan Agreement. (d) 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 and 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 the Agency. (e) Developer shall submit and obtain the Executive Director of the Housing Authority's approval of the construction contract, the identity and qualifications of the General Contractor, 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. 6.4 Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied (subject to applicable notice and cure rights), and (b) Agency is not in default under this Agreement, Agency may terminate this Agreement without any further liability on its part by giving written notice of termination to Developer. 80A-137 Upon the giving of such notice, all principal, interest and other amounts owing under the specified due date. 6.5 Any Disbursement. Agency's obligation to make any disbursement of the Loan, including the first and final disbursements, is subject to the satisfaction of the following conditions precedent: (a) Satisfactory Progress. The City Project Manager shall be satisfied that, based on his/her own inspections or other reliable information, the construction is progressing satisfactorily in conformance with all applicable laws and other requirements (including the City's Inclusionary Housing guidelines). (b) Condition of Title. Either (i) the City Project Manager reasonably believes that no event has occurred since the Close of Escrow that would give rise to a colorable claim against the Property (e.g., a mechanic's lien) superior to the claim of Agency against the Property with respect to the subject disbursement, or if such claim is made, then City Project Manager shall receive satisfactory evidence that such claim has been bonded over until its resolution; or (ii) Agency must have received, at Developer's expense but payable out of the Loan proceeds from the title insurer who issued Cit)A LP- 10 Title Policy, all endorsements thereto then reasonably required by Agency (including, without limitation, CLTA Form 122 -- priority of advance endorsements). (c) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Agency Loan Documents shall be correct in all material respects as of the date of the disbursement as though made on and as of that date. (d) No Default. No Event of Default by Developer shall remain uncured (unless, to the extent permitted under this Agreement, Developer is diligently taking action to cure such default) and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer. 6.6 Final Disbursement. Agency's obligation to disburse that portion of the Loan funds retained pursuant to Section 6.12 is subject to the satisfaction of the following additional conditions precedent: (a) Construction complete. The construction of the Project shall be complete. (b) Certificate of Occupancy Issued. Any portion of the construction work requiring inspection or certification by any Governmental Authority shall have been inspected and certified as complete. Developer shall request that the Building Department issue a Certificate of Occupancy, a copy of which shall be delivered to the City Project Manager, in order for final disbursement to occur. (c) Lien Free. At least one of the following shall have occurred: 80A-138 (i) Thirty-five (35) days shall have passed since the recording of a valid notice of completion for the construction, and no mechanic's or materialman's lien shall be outstanding; or (ii) Ninety-five (95) days shall have passed since actual completion of the construction, and no mechanic's or materialman's lien shall be outstanding, or Developer shall have bonded over any such lien to Agency's reasonable satisfaction. 6.7 Waiver of Conditions. The conditions set forth pertaining to Agency's obligation to make disbursements of the Loan proceeds are for Agency's benefit only and the City Project Manager may waive all or any part of such rights by written notice to Developer. 6.8 Disbursement Requests. The Loan proceeds shall be disbursed on a line - item by line -item basis in accordance with the Project Budget and subject to the conditions in this section. In no event shall Agency have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Project Budget. Disbursements shall be made only upon 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 Agency may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to Agency, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b) all other documents and information reasonably required by Agency. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by Agency of proceeds of the loan, Developer shall deliver to Agency a draw request ("Draw Request"), and all required supporting information as set forth in the Agency Loan Documents or as otherwise reasonably required by Agency in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. Agency shall notify the Developer of approval or disapproval of each Draw Request within five (5) Business Days after receipt of the Draw Request, using the Agency's "Disbursement/Change Order Approval Notice". Agency 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. Agency 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 Agency. 6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by Agency or Developer to be required to complete all matters included in any line item in the ,Project Budget exceeds the amount allocated to 80A-139 that line item in the Project Budget, (b) Project costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the Loan proceeds and all other approved financing sources are or may be insufficient to pay all construction of the Project that may be payable under the Agency Loan Documents or otherwise in connection with the construction, Developer shall, within ten (10) days after it receives written notice thereof from Agency of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to Agency 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 Agency Loan; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the City Project Manager's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non -interest bearing account (the "Overrun Account") with Agency from which withdrawals may be made only with the consent of the City Project Manager but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Project Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. Agency 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 Agency prior to the disbursement of any remaining Loan proceeds in the manner described in subsection 9.3(c). 6.11 Cost Savings. Upon completion of and disbursement for all matters covered by any line items in the Project Budget, any remaining undisbursed amounts allocated to that line item shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 6.12 Retainage. Agency 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 Agency's withholding Retainage, Developer can by written notice to Agency elect not to draw any overhead or profit as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. Agency shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to Agency proving payment in full, land acquisition costs, or for soft costs. 6.13 Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as 80A-140 determined by the City Project Manager) for "punch -list" items. Such holdback will be released when all punch -list items have been completed to the satisfaction of Agency. 6.14 Waiver of Disbursement Conditions. Unless Agency otherwise agrees in writing, the making by Agency of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made, and such condition shall be conditioned to all further disbursements until fulfilled. 6.15 Modification of Disbursement Conditions and Procedures. The City Project Manager shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the contract for construction. 6.16 Other Terms and Conditions of Loan. A. The Note shall become immediately due and payable, in the event of any of the following: (1) Failure to be awarded tax credits within two (2) years of the recording date and failure to complete the Project within four (4) years of the recording date; (2) Violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and tine periods; or, (3) An Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 6 .17 Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROJECT 7.1 Use Covenants and Restrictions. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all of the rental units on the Property available to extremely low, very low and low income households at rents affordable to such households for fifty-five (55) years (except for one (1) unit for the onsite manager). The Project shall consist of sixty-nine (69) residential units. Enforceability of restrictions on the sixty-eight (68) units shall be enforced until the date that is fifty-five (55) years after the date on which the Certificate of Occupancy is issued. 7.2 Affordability Levels/Unit Mix: The proposed unit mix and levels of affordability are as follows: 80A-141 Bedroom Size 30% AMI 40% AMI 50% AMI 60% AMI Manager's Unit Total Two Bedroom 29 0 4 1 1 35 Three Bedroom 4 0 17 7 28 Pour Bedroom 1 0 0 5 6 Totals 34 0 21 13 1 69 * The affordable rents charged at the Project must comply with the standards set forth by the California Tax Credit Allocation Committee (TCAC). * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The Housing Authority of the City of Santa Ana publishes a utility allowance schedule on an annual basis, provided, however, in lieu of the utility allowance published by the Housing Authority the Developer may elect to use the California Utility Allowance Calculator to the extent allowed by TCAC. 7.3 Rent Increases: On an annual basis, the Agency shall provide the Developer with the maximum allowable schedule of rents for the Property which shall correspond to the maximum rent increase allowed by TCAC. In no event can Developer charge any tenant more than such amount. 7.4 Maintenance of the Property. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the Agency, unless such condition cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the Agency may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The Agency shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Section 17 of this Agreement. 7.5 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, disability, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 80A-142 8. DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perform any term or provision of this Agreement within the time periods provided herein for such performance constitutes a default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section. The injured parry shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the Agency shall have the right to terrninate this Agreement by delivery of written notice of termination to Developer. 8.2 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover economic damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.4 Damages. In the event that the Agency 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. 8.5 Nonrecourse Liability. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached Note and Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the loan evidenced by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 9. GENERAL PROVISIONS AND WARRANTIES As a material inducement to Agency to enter into this Agreement, Developer represents and warrants as follows: 9.1 Formation, Qualification and Compliance. AMCAL 1440 Santa Ana Fund, L.P. is a California limited partnership. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other 80A-143 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 A2ency Loan Documents. 9.2.1 Developer has all requisite authority to execute and perform its obligations under the Agency Loan Documents. 9.2.2 The execution and delivery by Developer of, and the performance by Developer of its obligations under, each Loan Document that has been authorized by all necessary action and does not and will not: (a) require any consent or approval not heretofore obtained of any person having any interest in Developer; (b) violate any provision of, or require any consent or approval not heretofore obtained under, any articles of incorporation, by-laws or other governing document applicable to Developer; (c) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the Agency Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (d) to best of its knowledge, violate any provision of any law presently in effect; or (e) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Developer is a party or by which Developer or any of its property is bound. 9.2.3 Developer is not in default, in any respect that is materially adverse to the interests of Agency under the Agency Loan Documents or that would have any material adverse effect on the financial condition of Developer or the conduct of its business, under any law, contract, lease or other agreement or document described in sub- paragraph (d) or (e) of the previous subsection. 9.2.4 No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Authority is required which has not been previously obtained in connection with: (a) the execution by Developer of, and the performance by Developer of its obligations under, the Agency Loan Documents; and Documents. (b) the creation of the liens described in the Agency Loan 80A-144 9.3 Financial and Other Information. To the best of Developer's knowledge, all financial information furnished to Agency by the Developer or any affiliate thereof 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 Agency. To the best of Developer's knowledge, all other documents and information furnished to Agency by the Developer or any affiliate thereof with respect to Developer, in connection with the Loan, are correct and complete insofar as completeness is necessary to give the Agency accurate knowledge of the subject matter. To the best of Developer's knowledge Developer has no material liability or contingent liability not disclosed to Agency in writing and there is no material lien, claim, charge or other right of others of any kinds (including liens or retained security titles of conditional vendors) on any property of Developer not disclosed in such financial statements or otherwise disclosed to Agency 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 furnished to Agency. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to Agency in writing. 9.5 Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to Agency in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to Agency. 9.6 Governmental Requirements. To best of its knowledge, Developer is in compliance with all laws relating to the Property and all Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 9.7 Rights of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8 Litigation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer or any property of Developer before any Governmental Authority, except as disclosed to Agency in writing prior to the execution of this Agreement. 80A-145 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 Agency, by whatever means, is accurate, correct and sufficiently complete to give Agency true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. 9.11 Conflicts of Interest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she has a direct or indirect financial interest. The 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 Agency Officials and Employees. No member, official or employee of the Agency shall be personally liable to the Developer in the event of any default or breach by the Agency 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 Agency has only agreed to assist the Developer as a means by which to induce the construction/development of the Project. Accordingly, Developer further expressly ackriowledges 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 Agency Project Manager (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by a limited partner of Developer to an affiliate, for the inclusion of tax credit investors in the Agreement, or as otherwise provided in the Deed of Trust. 9.14 Applicable Law, This Agreement shall be interpreted, governed and enforced under federal and California state law with venue in Orange County, California. 9.15 Third Parties. This Agreement is made for the sole benefit of Developer and the Agency and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the Agency hereunder or arising from any default by Developer, nor shall the Agency owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the construction of the Property. 9.16 Control of Property. The parties aclmowledge that the Agency has not at anytime participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 80A-146 10. CONDITIONS FOR CONSTRUCTION 10.1 Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the construction and conversion of the Property. 10.2 Commencement and Completion of Construction. The constriction of the Project shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by Governmental Authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 10.3 Chance Orders. The contract for construction shall not be modified except pursuant to change orders. All change orders in excess of $10,000: (a) Shall be in writing, numbered in sequence, signed by Developer and submitted to Agency prior to the proposed effectiveness thereof and accompanied by any working drawings and a written narrative of the proposed change; and, (b) Shall be subject to the City Project Manager's prior written approval. 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice and subject to reasonable job site safety rules, Agency and its agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the construction are stored, (b) the right to inspect all labor performed and materials furnished for the construction, and (c) the right to inspect and copy all documents pertaining to the construction. 10.5 [RESERVED] 10.6 Construction Information. From time to time during the course of the construction, within ten (10) Business Days following Agency's written demand therefore, Developer shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the construction, itemized as to trade description and item, showing the name of the contractor(s) and/or subcontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Against Liens: Developer shall diligently file a valid Notice of Completion upon completion of the construction, diligently file a notice of cessation in the event of a cessation of labor on the construction for a period of thirty (30) days or more, and take all actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the Agency by any person furnishing labor or materials 80A-147 to the Property, Developer shall immediately give written notice of the same to Agency and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the same, (b) effect the release thereof by delivering to Agency a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as Agency may require to release Agency from any obligation or liability with respect to such stop notice or claim. 11. COVENANTS 11.1 [RESERVED] 11.2 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 California Health and Safety Code section 50052.5 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.3 [RESERVED] 11.4 [RESERVED] 11.5 Handicapped Accessibility. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36 in order to make the Project readily accessible to and usable by individuals with disabilities. 11.6 [RESERVED] 11.7 [RESERVED] 11.8 Lead -Based Paint. Developer shall comply with the requirements, as applicable of the Lead -Based Paint Poisoning Prevention Act. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by and the City of Santa Ana's adopted affirmative marketing procedures and minority outreach program. 11.10 Equal Opportunity and Fair Housing. Developer shall carry out the construction and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing described in. Developer must also follow the requirements of California Health and Safety Code section 33435. 11.11 Property Standards. Developer shall cause the Property to meet, 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. .O I � ' OO 11.12 [RESERVED] 11.13 [RESERVED] 11.14 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the rehabilitation and soft costs of the Project). The amount of each request shall be limited to the amount needed. 11.15 Eligible Costs. Developer shall use Agency Low and Moderate Income Housing Asset Fund Funds to pay costs within the Project Budget attached herewith as Exhibit E. 11.16 Records and Reuorts. Developer shall maintain and from time to time submit to Agency such records, reports and information as the City Project Manager may reasonably require in order to meet Agency record keeping and reporting requirements. 11.17 [RESERVED] 11.18 Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth in all applicable state regulations pertaining to conflict of interest. 11.19 Monitoring. Developer shall allow the Agency to conduct periodic inspections of each of the assisted units on the Property as required by the Housing Opportunity Ordinance after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the Agency while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the sole discretion of the Agency. 11.20 Recertification of Tenant Income. (a) Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis. At a minimum, every fifth (5th) year, Developer shall require new original income documents to be submitted by tenants. (b) Developer shall allow the Agency to conduct periodic reviews of tenant files and files relating to affirmative marketing and outreach to insure the Project's compliance with applicable regulations and guidelines. (c) Agency 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. 80A-149 11.21 Other Requirements. Developer shall comply with all other applicable requirements of the Housing Opportunity Ordinance, including the following: (a) Onsite Services: The Developer shall provide on -site services that are available to the residents and shall report to the Agency annually the services provided. (b) Coordination with the WORK Center: The Developer and the Property Manager shall coordinate with the City's WORK Center to provide services and outreach to tenants, as well as provide information on employment during the construction of the Project. (c) Tenant Satisfaction Survey: The Developer shall complete and submit to the Agency biennial tenant satisfaction surveys of tenants. (d) Rental Inclusionary Housing Manual: The Developer shall also maintain compliance with the City's Inclusionary Housing Manual for Rental Projects. 11.22 Controlling Covenants. If there is a discrepancy between Local, State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a business- like manner; shall prudently preserve and protect its own as well as the Agency's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of Agency's interests under the Agency Loan Documents. Without limiting the generality of the foregoing, and except as otherwise agreed by Agency in writing from 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 Agency'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 80A-150 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. Subject to any property tax abatement available to the 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 Agency (other than Agency's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any hnposition in installments (together with any accrued interest). 12.3.1 Right to Contest. Developer shall not be required to pay any hnposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to Agency's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair the Agency's interests under the Agency Loan Documents, and (c) Developer has furnished Agency with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 12.3.2 Evidence of Payment. Upon demand by Agency from time to time, Developer shall deliver to Agency, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to Agency. 12.3.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to Agency. 12.4 [RESERVED] 12.5 Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account"). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Operating Budget, as it may be revised from time to time with prior Agency approval. Developer may make withdrawals from this account solely for the payment of project expenses and project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the Agency. 80A-151 12.6 Replacement Reserve Account. Developer must establish or cause to be established a segregated replacement reserve depository account ("Replacement Reserve Account") no later than the commencement of the permanent financing period for the Project. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer's Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Project that are reasonably required to preserve the Project. Developer may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the Agency. 13. NONDISCRIMINATION COVENANTS 13.1 Obligation to Refrain from Discrimination. Developer covenants and agrees that: (a) In Use of Property. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, disability, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. (b) In Affordable Housing Restrictions. The foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (c) remain effective for the term of the contract (for 55 years). (c) In Employment. In construction on the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, disability, creed, religion, sex, marital status, disability, national origin, or ancestry. (d) In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor for the benefit of Agency, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the Agency, 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 80A-152 (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14.2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the construction of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3 Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property. 14.4 Notice of Environmental Matters. Developer shall immediately advise Agency in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental Law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the Agency and its respective officers, directors, employees and agents (collectively the "lndemnitees") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the lndemnitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property other than resulting from the gross negligence or willful misconduct of any Indemnitee.. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the Agency Promissory Note or Agency Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 15.1 Existence. The sole member of Developer's managing general partner shall maintain its existence in good standing under the laws of the State of California, and Developer shall provide documentation of such status annually to the Agency. 15.2 Protection of Lien. Developer shall maintain the lien of the Agency Deed of Trust as a valid second priority deed of trust on the Property and take all actions, and 80A-153 execute and deliver to Agency all documents, reasonably required by Agency from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to Agency, within ten (10) days of Developer's learning thereof, of each of the following: (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Developer or any general partner to liability in excess of $5,000, whether covered by insurance or not; (b) any dispute between Developer and a Governmental Authority relating to the Property, the adverse determination of which might materially affect the Property; (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; (f) any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; (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 Agency all documents, and take all actions, reasonably required by Agency from time to time to confirm the rights created or now or hereafter intended to be created under the Agency Loan Documents; to protect and further the validity, priority and enforceability of the Agency Deed of Trust; to subject to the Deed of Trust any property intended by the terms of any Loan Document(s) to be covered by the Agency Deed of Trust or otherwise to carry out the purposes of the Agency Loan Documents and the transactions contemplated thereunder. 15.5 Annual Financial Statements. Developer shall deliver to Agency, within one hundred fifty (150) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together 80A-154 with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to Agency, (ii) fairly present Developer's financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the Agency with any other annual audit reports issued by other monitoring agencies. Developer shall include in said reports, a document in the "Form of Residual Receipts Report" attached hereto as Exhibit G and incorporated herein. 15.6 Audits and Access to Records. Developer agrees that Agency or any of their authorized representatives shall have the right of access, upon reasonable notice and during normal business hours, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability or recapture period ends. 15.7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the Agency every fifth (5th) year beginning January 2023. 16. OTHER COVENANTS While any obligation of Developer under the Agency Note or Agency Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 16.1 Default on Senior Loan. Developer shall not default on any of the Senior Loan documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Sale or Lease of Property. Unless and until Developer has received a Certificate of Completion for the construction from Agency, Developer shall not sell, lease (other than to tenants meeting the requirements set forth in this Agreement), sublease or otherwise transfer all or any part of the Property or any interest therein without the prior written consent of the City Project Manager, which consent may be withheld in the City Project Manager's reasonable discretion. In connection with the foregoing consent requirements, Developer acknowledges that Agency relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the construction. 80A-155 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 one or more of 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 the Limited Partner's interest in the Developer or of an interest in the Limited Partner. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction and upon the request of Developer, or at its own election, the Agency shall issue a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction. If Agency declines to furnish a Certificate of Completion after written request from Developer, the City Project Manager shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefore. The statement shall contain a description of the action Developer must take to obtain a Certificate of Completion. If the reason therefore is that the Developer has not completed a minor portion of the construction, Agency may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with Agency of a bond or other form of security acceptable to the City Project Manager in the amount of the fair value of the uncompleted work. A Certificate of Completion is not evidence of compliance with or satisfaction of the Agency 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 Agency. Developer acknowledges and agrees that: (a) The relationship between Developer and the Agency is and shall remain solely that of Developer and lender. Agency neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the construction, including matters relating to: (i) the performance of the construction work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress 80A-156 of the construction; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by Agency in connection with such matters is solely for the protection of Agency and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the Agency is not a partner, joint venture, alter -ego, manager, controlling person or other business associate or participant of any kind of Developer and Agency does not intend to ever assume any such status; (ii) Agency's activities in connection with the Loan shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and Agency does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and (iii) Agency shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) Agency shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and, (d) By accepting or approving anything required to be performed or given to Agency Linder the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, Agency 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 Agency to anyone. 18.2 Indemnity. Developer shall defend (by counsel reasonably satisfactory to Agency), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the 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 Agency with respect to the consequences of any act of gross negligence or willful misconduct of Agency. Developer's obligations under this Section shall survive the cancellation of the Agency Promissory Note, release and reconveyance of the Agency Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. 18.2.1 Notwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result as the repayment of principal and/or interest under the Loan. 80A-157 18.3 Reimbursement of Agency. Developer shall reimburse Agency immediately upon written demand for all costs reasonably incurred by Agency (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of Agency) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which Agency is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty (20) days after Agency gives written demand to Developer and shall be secured by the Agency Deed of Trust. Such reimbursement obligations shall survive the cancellation of the Loan Note, release and reconveyance of the Agency Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the Agency, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the construction; (b) prior to commencement and following completion of the construction, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (e) upon commencement of the construction and at all times prior to completion of the construction, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amounts reasonably required by Agency from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonably required by the Agency from time to time, and in no event less than $1,000,000; and (f) any other insurance reasonably required by Agency which is available at commercially reasonable rates. 80A-158 All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to Agency. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to Agency, showing the Agency as encumbrance. The Agency shall be named as an additional insured in the policies required under subparagraphs (d) and (e). Certificates of insurance for the above policies (and/or original policies, if required by Agency) shall be primary and delivered within ten (10) days after demand therefore, and prior to start of any construction work All policies insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co- insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to Agency evidence of renewal or replacement of such policy reasonably satisfactory to the City Attorney. 19.2 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section so long as such modifications are commercially reasonable for an affordable housing development such as the Project. 19.3 Claims and Proceedings. Developer shall give Agency immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi -public use of any portion of the Property (collectively, "Condemnation"), and shall provide Agency with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by Agency in connection therewith to protect the interests of Developer and/or Agency, and Agency shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. 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 Agency. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the Agency 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 (tmless extended by mutual agreement of Developer and Agency) following the occurrence of the receipt of the Proceeds: (a) Developer shall demonstrate to Agency's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b) and any undisbursed loan and tax credit proceeds available to the Developer) will be adequate to repair the Improvements and to restore the fair market value 80A-159 of the Property, within a time period reasonably determined by Agency, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to Agency of (i) plans and specifications reasonably satisfactory to Agency, and (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to Agency. (b) To the extent that the Proceeds (together with all undisbursed Loan proceeds and any other financing proceeds available to the Developer) are insufficient to accomplish the restoration required above, Developer shall deliver to Agency funds (the "Shortfall Funds") in the amount of such shortfall, which funds shall be assigned to Agency 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 Agency reasonably requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by Agency 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 Agency against any obligations to Agency that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within one hundred eighty (180) days (unless extended pursuant to Section 19.5) following the date Proceeds are received, the Proceeds shall be applied by Agency against any obligations to Agency that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by Agency in its sole and absolute discretion. 19.8 Restoration. Nothing in this Section 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the Agency, as security for all obligations to Agency secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation"). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to Agency immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of Agency, renders or is likely to render the Property not economically viable or 80A-160 if, in Agency's reasonable judgment Developer's security is otherwise impaired, Agency may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as Agency may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to Agency shall be paid to Developer or Developer's assignee. Agency 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 Agency's liens are not impaired, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.9.2 Notwithstanding the foregoing, during the tax credit compliance period for the Project, as determined under Section 42 of the Internal Revenue Code, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.10 Waiver of Subrogation. Developer hereby waives all rights to recover against the Agency (or any officer, employee, agent or representative of Agency) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: (a) Developer fails to make any payment of principal or interest under the Agency Promissory Note when due, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the payment of money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30)-day period, such failure shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to 80A-161 cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within one hundred twenty (120) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; (f) Work on the construction ceases for thirty (30) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other deity, strikes or other causes beyond Developer's reasonable control); (g) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues unstayed for sixty (60) days or more for any reason; (h) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the City Project Manager's prior written consent; (i) Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, construction or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or 0) (i) any of the Senior Loan documents is revoked or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the City Project Manager's prior written consent, or (ii) Developer defaults or otherwise fails to perform any of its duties or obligations under or in connection with any of the Senior Loan documents, subject to all applicable notice and cure periods, or (iii) any of the Senior Loan documents is amended, supplemented or otherwise modified without Agency's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, Agency hereby agrees that any 80A-162 cure of any default made or tendered by Developer's Limited Partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, Agency may, at its option and in its absolute discretion, do any or all of the following: (a) By written notice to Developer, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 (e) shall automatically, without notice or other action on Agency's part, cause all such amounts to be immediately due and payable; (b) In its own right or by a court -appointed receiver, take possession of the Property, enter into contracts for and otherwise proceed with the completion of the construction by expenditure of its own funds; (c) Exercise any of its rights under the Loan Documents and any rights provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as Agency elects in its sole and absolute discretion; and, (d) Suspend or terminate the award of Agency funds if Developer fails to comply with any term of such award. 20.3 Cumulative Remedies: No Waiver. Agency's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by Agency of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the Agency in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by Agency to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. Agency's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary Agency's consent to or approval of any subsequent act. The Agency's acceptance of the late performance of any obligation shall not constitute a waiver by Agency of the right to require prompt performance of all further obligations; Agency's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and Agency's acceptance of any partial performance shall not constitute a waiver by Agency of any rights. 80A-163 21. MISCELLANEOUS 21.1 Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of Agency to Developer, or any other claim by developer against Agency, 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: AMCAL 1440 Santa Ana Fund, L.P. c/o AMCAL Multi -Housing, hie. 2082 Michelson Drive, Suite 306 Irvine, CA 92612 Attention: Mario Turner Copy to: AMCAL Multi -Housing, Inc. 30141 Agoura Road, Suite 100 Agoura Hills, CA 91301 Attention: General Counsel Copy to Limited Partner If to Agency: Housing Authority of the City of Santa Ana Executive Director 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non -receipt of any notice as the result of a change of address 80A-164 of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loan(s) described herein and have been or will be relied on by Agency 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 Agency, and no other person shall have any rights hereunder or by reason hereof. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and Agency and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under any Loan Document without the prior written consent of Agency, which consent may be withheld in Agency's sole and absolute discretion. Any such assignment without such consent shall, at Agency's option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the Agency and Developer with respect to the Loan and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as Agency may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 21.8 Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9 Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents. 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 80A-165 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 Agency 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 [RESERVED] 21.15 Plans and Data. Where Developer does not proceed with the work and construction of the Project, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to Agency any and all plans and data concerning the Property, and Agency or any person or entity designated by Agency shall have the right to use such plans and data without compensation to Developer. Such right of Agency shall be subject to any right of the preparer of the plans to their use. 21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the Agency fully, including reasonable costs and attorney's fees, for any injuries or damages to Agency in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 21.17 Transfer of Developer Limited Partner's Interest. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, no consent shall be required of the Agency (and it shall not be deemed a default or an Event of Default under any of the Loan Documents), in connection with the transfer and/or the assignment by the Developer's limited partner of its interest in the Developer to an entity controlled or managed by an entity which is related to or under common control with the Developer's limited partner. 21.18 Removal of Developer's General Partner. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, the removal and/or replacement of a General Partner for cause in accordance with the Partnership Agreement shall not require the consent of the Agency and shall not shall not constitute a default or an Event of Default under this Agreement or the Loan Documents or accelerate the maturity of the Agency Loan. If the Developer's limited partner exercises its right to remove a General Partner, Agency will not unreasonably withhold its consent to the substitute general partner; provided however, the consent of either the Agency shall not be required if the substitute general partner is an affiliate of the Developer's limited partner. The substitute general 80A-166 partner shall assume all of the rights and obligations of the removed general partner hereunder. 80A-167 IN WITNESS WHEREOF, the patties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: HOUSING AUTHORITY OF THE CITY OF SANTA ANA ACTING AS THE HOUSING SUCCESSOR AGENCY Maria D. Huizar Gerardo Mouct Clerk of the Council Acting City Manager APPROVED AS TO FORM Sonia R. Carvalho City Affo)ney 0 10 RECOMMENDED FOR APPROVAL Robert C. Cortez Deputy City Manager (Signatures continue on folloMng page) DEVELOPER: AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership By: AMCAL 1440 Santa Ana Fund, LP, a California limited partnership in 80A-169 EXHIBITS A. Legal Description B. Affordability Restrictions on Transfer of Property C. Agency Deed of Trust D. Agency Promissory Note E. Project Budget F. Scope of Work / Schedule of Performance G. Form of Residual Receipts Report H. Partnership Agreement 80A-170 Exhibit Ae. Legal Description 80A-171 EXHIBIT "A" Legal Description All that certain real property situated in the County of Orange, State of California, described as follows Parcel 1: The Easterly 112.51 feet of the Westerly 437,51 feet of that portion of land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the Final Decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B" Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the center lines of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06' 48" West 398.34 feet to the point of beginning. Excepting therefrom, that portion of the North 71.00 feet as described in the Deed to the City of Santa Ana, recorded April 15, 1960 in Book 5196. Page 381 of Official Records. Parcel 2 A non-exclusive easement for ingress and egress over the South 25 feet of the Westerly 325 feet of that portion of the land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 'feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860. Page 4 of Official Records; Thence South 00 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06' 48" West 398.34 feet to the point of beginning. Parcel 3 The Westerly 175.00 feet of the Easterly 375,00 feet of that portion of the land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06' 40" East 397.90 feet to the Southeast comer of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06' 48" West 398.34 feet to the point of beginning, 80A-172 Excepting therefrom, the South 21 feet of the North 71 feet thereof Parcel 4: A non-exclusive easement for ingress and egress over the South 25 feet of that portion of the land allotted to N. O. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Paee 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest comer of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89' 08' 20" West 812,54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06' 48" West 398.34 feet to the point of beginning. Excepting therefrom, the Easterly 375.00 feet. Parcel 5: A non-exclusive easement for ingress and egress, for sewer lines, public utilities and drainage and the maintenance of these items over the South 25 feet of the following described land: The Westerly 437 feet of that portion of the land allotted to N. O. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812,56 feet along the centerline of said First Street to the Northeast comer of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast comer of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06' 48" West 39834 feet to the point of beginning. Assessor's Parcel Number: 011_154-43 80A-173 Exhibit Be. Affordability Restrictions on iii��ir I 80A-174 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Housing Division Manager AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY {Address: 1440 East First Street, Santa Ana, California) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") and the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic ("Agency"). RECITALS: A. The Agency is authorized by the Community Redevelopment Law of the State of California (Health and Safety Code section 33000, et seq.) ("CRL") to expend funds to increase the supply of very low and low income housing available at affordable housing costs. In part to further this goal, the Agency has created the Merged Project Areas, within the City (the "Project Area"), and adopted a Redevelopment Plan for the redevelopment of the Project Area. In accordance with Section 33334.2, et seq., of the CRL, the Agency sets aside a portion of the tax increment revenues it receives from the Merged 'Project Area in a separate low and moderate housing fund, which the Agency uses for the construction, preservation, and rehabilitation of affordable housing for low income households. B. Developer requested financial assistance in connection with the proposed development of a sixty-nine (69) unit affordable workforce housing complex ("Project") to be located at 1440 East First Street, Santa Ana, California, and legally described within Exhibit A attached hereto and incorporated herein ("Property"). The residential units will be located within six (6) 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 (6) four -bedroom units, twenty-eight (28) three -bedroom units, and thirty-five (35) two -bedroom units (one being a manager's unit). Eight (8) 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 seating, BBQ's, a flex play space and planters. The community room will be 80A-175 incorporated into the development, providing a computer laboratory, kitchen, activity room for resident activities, and office space for property management and social services staff. Developer will engage a qualified non-profit organization approved by the City (of which LifeSTEPS is hereby approved by the City) 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. C. The City of Santa Ana ("City") and the Housing Authority of the City of Santa Ana ("Housing Authority") reviewed 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 a conditional, pre -commitment letter evidencing the preliminary award of $6,195,000 of funds to the Project ("Agency Loan"), to be funded exclusively from the Low and Moderate Income Housing Asset Fund (the "LMIHAF") held by the Agency. D. The amount of the Agency Loan was determined based upon the City and Agency's review of the Developer's request for the receipt of the Agency Loan 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 Loan is not materially increased or extended. E. In furtherance of the CRL and the Redevelopment Plan, Developer has applied to the Agency for a loan with which to: 1. Provide deeper affordability and construct the improvements to the Property, and 2. Thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. F. The Agency, on certain terms and conditions, desires to make such Agency Loan to Developer in order to make possible the construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. G. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. H. The Agency Loan Agreement, Agency Deed of Trust, and Agency Promissory Note, dated concurrently herewith (collectively the "Agency Loan Agreements") are entered into for the purpose of providing for affordable very low income residential rental units in the City of Santa Ana pursuant to the Agency Funds regulations and guidance. NOW, THEREFORE, AGENCY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions 80A-176 "Affordable Housing" means the total housing costs paid by a qualifying household, which shall not exceed the fraction of gross income specified, as follows, in accordance with Sections 50052.5 and 50053 of the Health & Safety Code: Very Low -Income Households. Thirty (30) percent of the income of a household earning fifty (50) percent of the Orange County median income adjusted for family size appropriate for the unit. Low -Income Households. Thirty (30) percent of the income of a household earning seventy (70) percent of the Orange County median income for for -sale units, and thirty (30) percent of the income of a household earning sixty (60) percent of the Orange County median income for rental units, adjusted in either case for family size appropriate for the unit. In the event of a conflict between the fractions specified in this definition and those found in Sections 50052.5 and 50053 of the Health & Safety Code, the fractions specified by State law shall control. "Affordability Period" also referred to as "Term of Affordability", shall be fifty-five (55) years from date of issuance of Certificate of Completion. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the California Tax Credit Allocation Committee (TCAC). "Agency" means the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the CRL. The principal office of the Agency is located at 20 Civic Center Plaza, Santa Ana, California 92702. "Agency" shall also refer to the City where the context dictates, to the effect that City shall have all rights granted to the Agency hereunder. "Agency Deed of Trust" means the deed of bust encumbering the Property to be executed by Developer in order to secure the Agency Loan Note. "Agency Loan" means a loan in the original principal amount of up to six -million, one - hundred and ninety-five thousand dollars ($6,195,000) to be made to Developer by the Agency to be funded exclusively from the Low and Moderate Income Housing Asset Fund held by the Agency. "Agency Promissory Note" means that certain promissory note for Agency Loan funds in the original principal amount of $6,195,000 to be executed by Developer in favor of Agency to evidence the obligation of Developer to repay the Agency Loan through residual receipts as further described in the Agency Promissory Note. "Agreement" means this Affordability Restrictions on Transfer of Property between the Agency and the Owner affecting real property. 80A-177 "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Agency Funds. "Building Permit" means the building permit(s) issued by the City of Santa Ana and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City" shall also refer to the Agency where the context dictates, to the effect that the Agency shall have all the rights granted to the City hereunder. "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Agency Loan Agreement and Agency Deed of Trust recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Developer" or "Owner" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Event of Default" has the meaning set forth in Section 20.1. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. Hazardous Material shall not include (i) construction products, household cleaners and office materials 80A-178 of the type and quantity ordinarily used in the normal construction, operation and maintenance of properties similar to the Project or (ii) small amounts of household mold to the extent promptly remediated upon discovery. "HCD" means the California Department of Housing and Community Development (HCD) and any successors or assigns thereof. "Housing Authority" means the Housing Authority of the City of Santa Ana, a public body, corporate and politic. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting). "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non - recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 18.2. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Documents" or "Agency Loan Documents" means, collectively, this Agreement, the Agency Promissory Note, the Agency Deed of Trust, and the Affordability Restrictions on Transfer of Property, and any other agreement, docunnent, or instrument that the Agency reasonably requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by TCAC. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HCD. Also may be referred to interchangeably in the Agency Loan Documents as "Area Median Income" or "AMP'. 80A-179 "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the Agency Deed of Trust" means the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached as Exhibit G to the Agency Loan Agreement, as modified from time to time in accordance with the Agency Loan Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1440 East First Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Restricted Units" means the units restricted as affordable by the City Documents. "Scope of Work" means the detailed statement of the work to be performed by Owner on and to the Property pursuant to this Agreement, which is attached as Exhibit H to the Agency Loan Agreement. "Schedule of Performance" means the detailed schedule setting forth timeframes for certain tasks, which document is attached as Exhibit I to the Agency Loan Agreement. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender concurrent to the Agency 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 first deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. ,: 1 ffloe "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by TCAC. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Very Low Income households, as provided in the Agency Loan Agreement and these Restrictions 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. a. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty- five (55) years from the effective date of the issuance of the Certificate of Completion. b. The Project shall consist of approximately sixty-nine (69) units of which there will be six (6) four -bedroom units, twenty-eight (28) three -bedroom units, and thirty-five (35) two -bedroom units (one being a manager's unit). The affordability mix for the Project is as follows: Bedroom Size 30% AMI 40% AMI 50% AMI 60% AMI Manager's Unit Total Two Bedroom 29 0 4 1 1 35 Three Bedroom 4 0 17 7 28 Four Bedroom 1 0 0 5 6 Totals 34 0 21 13 1 69 C. Affordable rents shall be calculated and governed as provided by the California Tax Credit Allocation Committee (TCAC). Rental increases shall be in conformance with federal and state law. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent tables published by TCAC. 80A-181 3.2 Rent Increases: A. On an annual basis, the Agency shall provide the Developer with the maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units for the Property) which shall correspond to the maximum rent increase allowed by TCAC. B. Developer, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by TCAC. The City Manager, or designee, shall notify Owner in writing of the adjusted allowable maximum incomes and rents as allowed by TCAC. C. In no event shall the rent charged to the tenant of a Restricted Unit be more than that amount of the rent as published by TCAC, as amended from time to time (currently $604 for a two -bedroom unit, $700 for a three -bedroom unit, and $780 for a four -bedroom unit). D. Utility allowances must be deducted from the Maximum Gross Monthly Rent. Utility allowances are deducted from rents using the following amounts set annually by the Housing Authority of the City of Santa Ana, provided, however, in lieu of the utility allowance published by the Housing Authority the Developer may elect to use the California Utility Allowance Calculator to the extent allowed by TCAC. 4. Miscellaneous Provisions: A. Owner shall adopt and include as part of its Management Plan (described in subsection G below), written tenant selection policies and criteria for the Units that meet the following requirements: (a) Are consistent with the purpose of providing housing for Extremely -Low, Very -Low and Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; (c) Reserved; (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the Agency; and (1) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, 80A-182 ethnic and gender groups in the housing market area to the units. Owner, the Agency shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re -renting of any Restricted Units. B. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a federally funded tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable tenant -based assistance document. C. Any lease of any of the Units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "Owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (e) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. D. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. 80A-183 E. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards and state and local code requirements and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted on the Property. F. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. G. Not later than the closing for the construction loan for the Project, Owner shall submit to the City Project Manager a Management Plan in a form that is acceptable including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the City Project Manager not later than the time for the issuance of a certificate of occupancy for the Project. Owner shall manage the Restricted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the City Project Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent. The City Project Manager shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. (b) Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the issuance of a certificate of occupancy for the Project, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the City Project Manager. The budget and cash flow shall be in a form that is reasonably acceptable to the City Project Manager. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. H. If at any time the Agency determines that the units are not being managed or maintained in accordance with the approved Management Plan, Agency shall provide Owner with notice thereof which notice shall include a reasonable cure period not less than thirty (30) days. If the deficiencies have not been cured within the cure period provided in the Agency notice Owner FJ A shall change the management agent or the practices complained of, upon receipt of written notice from the City Manager. The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (30) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. I. The covenants established in these Restrictions and any amendments hereto approved by the Agency, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency and their respective successors and assigns. These Restrictions shall remain in effect for fifty-five (55) years. In its discretion, the Agency may defer repayment of the Loan or the Agency may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Restricted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. J. Reserved. K. Records and Audits. a. Owner shall maintain the following general program records, and make them available for inspection by the Agency, the State or HUD: (1) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with NSP funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority -owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (2) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the date on which Owner obtained ownership of the Property; (3) any other reports issued by other monitoring agencies. 80A-185 b. All records pertaining to each calendar year of Agency fiords must be retained for the most recent five year period, except that for rental housing projects, records maybe retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates. Owner shall cooperate with the Agency to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The Agency, the State, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. C. If so directed by the Agency upon termination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the Agency, as depository. d. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the Agency on reasonable prior notice, for the purpose of examination or audit. e. The Agency shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall reasonably cooperate with Agency in performing such audit. f. Owner shall permit the Agency to perform an Annual Physical Inspection of the Property with at least seven (7) days notice. Owner shall cooperate with this Inspection and shall take all steps necessary to quickly correct any code deficiencies identified during the Inspection. L. The Agency is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The Agency shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. M. The covenants and agreements contained herein shall run with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. N. The Loan Agreement and all of its attachments shall be enforceable by the Agency in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the Agency Note and the Agency Deed of Trust provide a means of enforcement by the Agency if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land. FOOTITMOOT19 IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho City Attorney By: Ryan O. Hodge Assistant City Attorney RECOMMENDED FOR APPROVAL Robert C. Cortez Deputy City Manager HOUSING AUTHORITY OF THE CITY OF SANTA ANA ACTING AS THE HOUSING SUCCESSOR AGENCY Gerardo Monet Acting City Manager (Signatures continue on following page) 80A-187 DEVELOPER: AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership FoorlyfflMougo Exhibit Co. Agency Deed of Trust FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M-26) Santa Ana, California 92702 Attn: Housing Division Manager AGENCY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS AGENCY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this day of February, 20t7, by between AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership (the "Trustor"), , a (the "Trustee"), and the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic (the 'Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1440 East First Street, Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Agency Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain Agency Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreement is on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of this Trust, to collect the rents, issues, and profits of the Property, reserving unto the Truster the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and 80A-190 chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of six - million, one -hundred and ninety-five thousand dollars ($6,195,000) (the "Agency Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This Deed of Trust is executed and delivered, along with the Agency Promissory Note and the Agency Loan Agreement, to benefit the Property. A copy of said Agency Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor aclaiowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or Agency Promissory Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the Agency Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan, but the Agency's Affordability Restrictions on Transfer of Property shall remain in first place except that the Agency's Affordability Restrictions on Transfer of Property shall be subordinated to Trustor's Senior Loan for acquisition. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Truster's covenants to make payments when due (subject to all applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed 80A-191 of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Truster will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Truster will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. 80A-192 Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Truster requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Agency Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. hispection. The Beneficiary may make, or cause to be made, reasonable entries upon and 'inspections of the Security upon reasonable prior notice during normal business hours; provided that the Beneficiary will give Truster reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required tinder applicable law to be given in another manner, (a) any notice to Trustor provided for in this Agency Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 2082 Michelson Drive, Suite 306, Irvine, CA 92612, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Division Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 16. Severability. In the event that any provision or clause of this Deed of Trust or the Agency Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the Agency Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the Agency Loan Note are declared to be severable. 80A-193 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the Agency Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Truster notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Truster as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Truster is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Truster to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include any transaction not considered a "transfer' under Section 16.2 of the Loan Agreement. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the Agency Promissory Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Truster's limited partner shall be deemed to be a cure by Trustor and shall be accepted or rejected on the same basis as if made or tendered by Trustor. 80A-194 The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Truster pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the Agency Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Truster pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Tmstor's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a parry unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Agency Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, Agency Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Truster to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustors interest in the Property. 80A-195 (Signatures on Following Page) 7 80A-196 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership 0 In 80A-197 Exhibit Do. Agency Promissory Note HOUSING FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE HOUSING AUTHORITY OF THE CITY OF SANTA ANA (1440 East First Street, Santa Ana, California) $6,195,000.00 Principal Amount of Loan February , 2017 Santa Ana, California FOR VALUE RECEIVED, AMCAL 1440 Santa Ana Fund, L.P., a limited partnership ("Borrower"), hereby promises to pay to the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic ("Agency"), or order, a principal amount not to exceed SIX -MILLION, ONE -HUNDRED AND NINETY-FIVE THOUSAND DOLLARS ($6,195,000) or so much thereof as may be advanced by the Agency to the Borrower, due and payable with 3% simple interest by residual receipts over the fifty-five (55) year term, pursuant to the Agency Loan Agreement (said "Agreement') between Borrower and the Agency dated concurrently herewith, which is incorporated herein by this reference. The Note Amount shall bear simple interest at the rate of 3% simple interest per annum, from the date of issuance of the Certificate of Occupancy. This loan is made pursuant to the "Housing Opportunity Ordinance In -Lieu Fee Program" or "In -Lieu Fees" with money funded through the Program as "Agency Housing Funds". Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to Agency hereunder is subject to the terms of said Agreement, the Affordability Restrictions on Transfer of Property, Agency Deed of Trust and this Note. Said documents are public records on file in the offices of the Agency, and the provisions of said documents are incorporated herein by this reference. This Note, said Agreement, the Affordability Restrictions on Transfer of Property, and the Agency 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 Agency. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. This Note evidences the obligation of Borrower to the Agency for the repayment of the Agency Loan of Agency Funds attributable to the acquisition, development, adaptive reuse and construction of the Property, and related soft costs. This Note is payable at the principal office of the City of Santa Ana — Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Attn: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 80A-199 2. Definitions. For the purpose of calculating the payments to be made by Borrower to Agency pursuant to this Note, the following terms shall have the following respective meanings: "Agency Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. "Agency Funds" shall mean the money provided by the Housing Successor Agency for the construction of the rental units hereunder. "Agency Deed of Trust" shall mean the Agency Deed of Trust in favor of the Agency, securing the Agency Loan, substantially in the form attached to the Agreement as Exhibit D, which is incorporated herein by this reference. "Agency Loan" shall mean the loan evidenced by this Note repayable to the Agency in accordance with the terms of this Note and secured by the Agency Deed of Trust. "Agency's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50%) of the total Residual Receipts from the Property as further described in Section 5 hereof. "Agreement" means the Agency Loan Agreement between the Agency and the Developer, and any attachments or amendments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Agency Housing Program, and the Agency Funds. "Area Median Income" means the median income figures for Orange County as published by the California Department of Housing and Community Development (HCD). Also may be referred to as "AMI" herein. "Borrower" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 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. 80A-200 (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Housing Successor Agency Loan" means the loan made by the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency to the Developer in the original principal amount of $6,195,000. "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 not to exceed 8% of gross rents; (iii) Owner Administration Fee not to exceed 5% of gross rents; (iv) deposits into required reserves; (v) any deferred developer fee; (vi) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the Agency; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. 3 80A-201 (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms -length transactions for similar services in Orange County, California area. (vii) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Property" shall mean that property located at 1440 East First Street, Santa Ana, California. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan, except for the payoff of the conventional lender's acquisition loan for the Property.. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale" shall not include any transaction not considered a "transfer' under Section 13. 4 80A-202 "Senior Loan" shall mean any senior loan made to Borrower, for payment of Acquisition and/or Rehabilitation Costs, and shall include any subsequent loan that refinances said Senior Loan. "Term" the term for repayment of this Note shall mean fifty-five (55) years from the date of recording of the Deed of Trust securing the Note. "Term of Affordability" the term of affordability shall be fifty-five (55) years. "very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. 3. Loan Repayment. Borrower shall make payments to the Agency as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement. 4. Operatin¢ Capital Improvement Loan. If the replacement reserve account ("reserves") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment/ Residual Receipts. a. Commencing on the date one hundred fifty (150) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150t' day of each Calendar Year thereafter the Borrower shall thereafter make a loan payment to the Agency annually, in the amount of the lesser of the outstanding balance due under this Note or the Agency's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter, the Borrower shall submit to the Agency an audited financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make an Agency Loan payment then due. c. Except as otherwise provided, the Borrower shall pay to the Agency the Agency's Percentage of the Residual Receipts as payment of principal. At least fifty percent (50%) of the Residual Receipts shall remain with the Borrower, with all Residual Receipts remaining with Borrower to the extent the Agency Loan has been fully repaid. 80A-203 d. Borrower shall retain fifty percent of the Residual Receipts. The other percent (50%), the Agency's Percentage of the Residual Receipts, shall be divided with thirty percent (30%) to be applied to the Agency Loan, and seventy percent (70%) to be applied to the payment of the Housing Successor Agency Loan. As Borrower repays its loans, the payment percentage applied to the remaining loans shall increase. e. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the principal balance of the loan. 6. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the Agency from every Refinancing that occurs during the term of this Note (other than refinancing of the conventional lender acquisition and/or construction loan) not to exceed the outstanding balance of principal on this Note, to the extent of the Agency's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the Agency the Agency's Percentage of the Refinancing Proceeds of which Agency Percentage shall be used thirty percent (30%) to repay the Agency Loan, and seventy percent (70%) to repay the Housing Successor Agency Loan to the extent of the outstanding balance on this Note. At least fifty percent (50%) of the Refinancing proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the principal balance of the Loan. The Agency shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in full. 7. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the Agency from any Sale that occurs during the term of the Agency Loan, to the extent of the Agency's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next, the Borrower shall pay to the Agency the Agency's Percentage of the Refinancing Proceeds of which Agency Percentage shall be used thirty percent (30%) to repay the Agency Loan, and seventy percent (70%) to repay the Housing Successor Agency Loan, and the amount necessary to pay any deferred developer fee in full, not to exceed the outstanding amount of principal due on this Note. At least fifty percent (50%) of the Sale Proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the principal balance of the Loan. The Agency shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. 6 80A-204 8. Accelerated Loan Payment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the Agency Loan, the Agency approves such sale and the purchaser assumes the balance of the Agency Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the Agency Loan, the Agency approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default (subject to any applicable notice and cure provisions by Borrower as to any other loan or loans by Agency to Borrower with respect to the Property; or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the Agency 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 Agency Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty-five (55) years. 10. Lawful Monev. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charges. a. Any payments received by the Agency pursuant to the terms hereof shall be applied first to sums, other than principal, due the Agency pursuant to this Note, and the balance, if any, to the payment of principal. b. If any payment is not received by the Agency within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; then in addition to the remedies conferred upon the Agency pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4%) of the amount due and unpaid will be added to the delinquent amount to compensate the Agency for the expense of handling the delinquency 80A-205 and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the Agency hereunder or under any of the other Loan Documents, Borrower shall indemnify the Agency against, and shall pay the Agency on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the Agency under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the Agency setting forth the basis for the determination of the amounts necessary to indemnify the Agency in respect of such expenses or direct loss, submitted to Borrower by the Agency, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to Agency. 12. Seeurity This Note is secured by the recorded Deed of Trust. 13. Acceleration by Reason of Transfer or Financing. a. In order to induce Agency to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of Agency (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), Agency shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. Agency may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of Agency. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of Agency (which consent Agency may grant or deny in its sole discretion), then the entire outstanding balance of the Agency Loan shall be repaid to the Agency at the time of each Refinancing or partial 8 80A-206 Refinancing. Additionally, a "Transfer" shall not include any transaction not considered a "transfer' under Section 16.2 of the Loan Agreement. 14. Event of Default. Subject to the provisions of Sections 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by Agency (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after any applicable notice has been provided and the expiration of any applicable cure period therefore, if any, provided therein. 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, Agency may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and Agency may foreclose on the Deed of Trust. Agency shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4%). No delay or omission on the part of the Agency in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 16. Attorney Fees. If this Agency Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 9 80A-207 V. Severability. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non -recourse. The Agency Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the Agency Loan or for any other amounts under any of the documentation evidencing, securing or describing the Agency Loan. The sole recourse of Agency under this Note and the Deed of Trust for repayment of the Agency Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and acknowledged by Borrower and Agency that the Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. b. The Agency shall give written notice of default to the Borrower specifying the default complained of by the Agency. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the Agency to be reasonably necessary to correct the default). 10 ,:1 1: d. Any failures or delays by the Agency in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the Agency in asserting any of its rights and remedies shall not deprive the Agency of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder Agency shall give Borrower written notice of such default. Borrower shall have a period of fifteen (15 Business Days after such notice is received within which to cure the default prior to exercise of remedies by Agency under this Note and the Deed of Trust. f. If a non -monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder, Agency shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the Agency under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Agency. In no event shall Agency be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the Agency Loan in balance and rebuild the Property in a manner that provides adequate security to Agency for repayment of the Agency Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) Agency shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Agency Loan in a manner that provides adequate security for repayment of the remaining balance of the Agency Loan. 23. Force Maieure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; 11 80A-209 riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the Agency or any other public or governmental Agency or entity (except that any act or failure to act of Agency shall not excuse performance by Agency); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the Agency and the Borrower. 24. Assi2nments. The Agency, and the assignee of the Agency, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 12 80A-210 This Agency Promissory Note is hereby agreed to and executed on the date first set forth above. AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership In 0 13 80A-211 Exhibit Ee. Project 80A-212 80A-213 Exhibit Fee Scope of Work /Schedule of 80A-214 SCOPE OF DEVELOPMENT The development is a 69-unit affordable rental apartment community that will serve family households. The property address of the subject site is 1440 East First Street in the City of Santa Ana. The development site consists of approximately 2.16 acres. The project will contribute to improving the neighborhood and will provide much needed affordable family housing to the community. The units are affordable to households earning between 30% and 60% Area Median Income (AMI). The unit mix includes thirty-four (34) 2-bedroom, twenty-eight (28) 3-bedroom, and six (6) 4-bedroom units. Of the 69 total units, 68 will be reserved for affordable households and 1 unit will be an unrestricted Manager's Unit. The two, three, and four -bedroom unit offer contemporary living for residents including balconies/patios, personal storage space, modern kitchens and bathrooms. To provide the most convenient living environment for families, all kitchens have garbage disposals, dishwashers and other amenities. The appliances will be energy efficient models to further reduce costs for residents. The project will achieve a Leadership in Energy and Environmental Design (LEED) Silver designation. The building design is contemporary and will utilize high standards of construction and sustainable design. The buildings are three stories in height and oriented towards First Street with the primary building lobby located at the ground level. The residential units will be located within six buildings, each constructed as a Type V three story tuck -under design. A community laundry building is also provided at the ground level. The resident parking includes garages and surface parking spaces. On -site amenities include a community room, outdoor gardens and amenity space including tot lots/play areas for children; outdoor seating, BBQ, 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. The convenient location of the development will provide resident access to public transportation, parks, markets, a public school, medical clinic and retail outlets. 80A-215 Proposed Development Schedule: EVENT DATE Community Redevelopment and Housing Commission 3/28/2016 City Council 4/19/16 Site Acquired 8/30/2015 Begin Entitlements 8/3/2015 City Staff Approval of Entitlements 3/28/2016 9% Tax Credit Application 3/1/2017 9% Tax Credit Award 6/30/2017 Begin Construction Documents 7/1/2017 Construction Financing Secured 8/1/2017 Tax Credit Investor Secured 8/1/2017 Begin Construction/Building Permit Issued 11/1/2017 Construction Complete 5/1/2019 Leasing Process Begins 5/1/2019 Project Fully Leased 8/1/2019 80A-216 Exhibit Go. Form of Residual Receipts Mr, 1 80A-217 EXHIBIT G FORM OF RESIDUAL RECEIPTS REPORT Community Redevelopment Agency of the City of Santa Ana Residual Receipts Report for the Year Ending Date Prepared Please complete the following information and execute the certification at the bottom of this form. Annual Project Revenue Please report Annual Project Revenue for the year ending on the following lines: Rent Payments (including Section 8 tenant assistance payments, if any) (1) $ Interest Income (do not include interest income from replacement and operating reserves nor interest income on tenant security deposits) Additional Income (for example, vending machine income, tenant forfeited deposits, laundry income not paid to the residents' association) Total Annual Project Revenue (Add lines 1, 2, and 3) Operating Expenses Please report Operating Expenses incurred for the year ending on the following lines: Operating and Maintenance Expenses Utilities Property Management Expenses and On -Site Staff Payroll Administrative Expenses Property Taxes Insurance (2) (3) $ (4) (5) $ (6) $ (7) $ (8) $ (9) $ (10) $ 80A-218 Other Expenses Please list these expenses: Total Annual Operating Expenses for the Housing Project (12) (Add lines 5, 6, 7, 8, 9, 10, and 11) Net Operating Income (Subtract Line 12 from Line 4) (13) Do not include expense unrelated to the operation of the Rental Portion of the Project, such as depreciation, amortization, accrued principal and interest expense on deferred payment debt, or capital expenditures. Additional Cash Flow Pavments Obligated First Mortgage Debt Service Payments (as approved by the Agency and (14) other parties that may have such approval rights) and Obligated Secondary Subordinate Debt Service Payments (as approved by the Agency and other parties that may have such approval rights) Scheduled Deposits to Reserves (as approved by the Agency) (15) Additional Payment Obligations (such as partnership management fees, deferred (16) developer fees, or repayments on loans to partners, as approved by the Agency to have priority over Residual Receipt Payment to the Agency) Total Additional Cash Flow Payments (Add lines 14, 15, and 16) (17) Residual Receipts for Year Ending (Subtract LIne 17 from Line 13) (18) Percentage of Residual Receipts to be Paid to the Agency (as shown in the (19) Promissory Note by and between the Agency and Borrower dated Amount Payable to the Agency (Multiply Line 1.8 by Line 19) (20) The amount payable to the Agency listed on Line 20 is subject to payment according to the terms of the Promissory Note by and between the Agency and Borrower dated . If Line 20 is $0.00 or negative, you owe nothing to the Agency this year. If Line 20 is a positive number, remit check payable to and attach to this report. 80A-219 Exhibit Ho. Partnership Agreement 80A-220 NO PARTNERSHIP INTEREST REPRESENTED BY THIS AGREEMENT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968, AS AMENDED, IN RELIANCE UPON EXEMPTIONS FOR SALES NOT INVOLVING ANY PUBIC OFFERING AND UPON THE REPRESENTATION THAT SUCH PARTNERSHIP INTERESTS WILL NOT BE TRANSFERRED UNLESS AN OPINION OF COUNSEL IS GIVEN, SATISFACTORY TO THE GENERAL PARTNER AND ITS COUNSEL, THAT REGISTRATION IS NOT REQUIRED. LIMITED PARTNERSHIP AGREEMENT OF AMCAL 1440 Santa Ana Fund L P This Limited Partnership Agreement of AMCAL 1440 SANTA ANA FUND, L.P. ("Agreement") is entered into as of September 1, 2015 between AMCAL Multi -Mousing Two LLC, a California limited liability company, as general partner ("Administrative General Partner"), and the parties signing at the end of this Agreement, as limited partners ("Limited Partner" or "Limited Partners"), The Partners agree as follows: I. Formation. The Limited Partners and the General Partner hereby enter into a Limited Partnership ("Partnership") pursuant to the Uniform Limited Partnership Act of 2008, Corporations Code Section 15900 and following, ("the Act") and the rights and liabilities of the Partners shall be as provided under California Law, except as set forth below. 2. Name. The name of the Parmershiip is AMCAL 1440 SANfA ANA FUND, L.P., a California Limited Partnership. 3. Principal Place of Business. The principal place of business of the Partnership is 30141 Agoura Rd., Suite 100, Agoura Hills, CA 91301. 4. Purpose. The purpose of the Partnership shall be to purchase, hold, develop, manage, improve, lease, sell that certain real property, described on Exhibit "B" ("Partnership Property") and all related activities. 5, Term, The Partnership shall begin when the Certificate of Limited Partnership is filed with the Secretary of State as required by the Act and shall continue until the first to occur of: (a) December 31, 2045 (b) dissolution by mutual agreement of the General and Limited Partners (c) termination as hereinafter provided, or (d) by operation of law, Initial LP Agreement - Santa Ma 1 80A-221 6. Capital Contributions. 6.1. Initial Capital. 'The Administrative General Partner shall contribute administrative services and not money or other property to the Partnership, The initial capital contribution of the Limited Partners shall be the total amount shown on Exhibit "A" under the heading "Initial Contribution". The Administrative General Partner shall also hold Limited Partners' interests to the extent shown on Exhibit "A" hereto. 6.2. Additional Limited Partners. If all the Limited Partners do not respond to a call for additional funds when due or for additional funds pursuant to paragraph 6.8, the Administrative General Partner shall be authorized to admit additional Limited Partners. Such Limited Partners shall become parties hereto by executing such documents as the Administrative General Partner may require pursuant to which they agree to be bound by this Agreement. The admission of additional Limited Partners shall not cause a dissolution of the Partnership. 63. Capital Accounts. A "Capital Account" shall be maintained for each Partner. The Capital Account for each Partner shall be equal to such Partner's initial capital contribution increased by: (i) cash and the fair market value of any property subsequently contributed to the Partnership by such Partner (net of liabilities assumed or taken subject to by the Partnership, pursuant to the provisions of Section 752 of the Internal Revenue Code of 1986 "[1RC"]) and (ii) such Partner's allocable share of Partnership income and gains, including any tax-exempt income; and decreased by; (a) cash and the fair market value of property distributed to such Partner (net of liabilities assumed or taken subject to by such Partner pursuant to the provisions of IRC Section 752), (b) such Partner's allocable share of Partnership losses and (e) such Partner's allocable share of expenditures of the Partnership described in IRC Section 705(a)(2)(B); and, notwithstanding the above, further adjusted as required to comply with Treasury Regulations Sections 1.704-1(b)(2)(N), including without limitation the provisions of subparagraphs (d), (e), (g), 0), (m), (n) and (r) thereof. All allocations for purposes of this Paragraph 6.3 shall be determined in accordance with the provisions of Article 7 (entitled "Profits, Losses and Distributions"). Each Partner shall have a single Capital Account which shall reflect all interests that Partner. 6.4. Limited Liability. Although a Limited Partner is personally liable to the Partnership for payment of his capital contribution, no Limited Partner will be bound by, or personally liable for the expenses, liabilities, or obligations of the Partnership, except to the extent of the Limited Partner's contribution to the capital of the Partnership and his share of the Partnership's undistributed profits; however, to the extent required by law, any Limited Partner receiving a distribution in return of all or a portion of his capital contribution shall be liable to the Partnership for any sum returned, plus interest, necessary to discharge Partnership liabilities to creditors whose claims arose before such return and before an amended certificate of limited partnership was filed reflecting such return of capital. 6.5. Role of Limited Partner. Except as otherwise provided in this Agreement or by law no Limited Partner shall take part in or interfere in any manner with the conduct or Initial 1,9 AG.,AMOtlt - Wta Ana 9.1.159.1.15 80A-222 control of the business of the Partnership or have any right or authority to act for or on behalf of the Partnership. 6.6, Interest. Interest earned on Partnership funds shall inure to the benefit of the Partnership, and Limited Partners shall not receive interest on funds contributed by them, 6.7. Right to Withdraw Contribution. No partner shall have the right to withdraw or reduce his contribution to the capital of the Partnership except as a result of the dissolution of the Partnership or as otherwise permitted by the Act, and no partner shall have the right to demand or receive property other than cash in return for his contributions to the Partnership. 6,8, Failure to Make Additional Capital Contributions. If the Partnership has insufficient funds to pay the Partnership's obligations, the Administrative General Partner shall have the option of either advancing the necessary sums and thereafter being reimbursed from Partnership funds as they become available or levy a capital contribution assessment on all Partners in proportion to their respective partnership interests. If any such additional contributions are not received within 15 days after the Partners are notified of the election to assess, the additional capital would be raised by first giving the remaining partners the first right of refusal to buy the incremental funding of the partners who do not come up with the required sum. If this fails the, Administrative General Partner would attempt to get new partners to buy the incremental funding required. The new money contributed (hereinafter "New Money") will receive a 30% annual return and the New Money will be returned to the investor before previously contributed capital receives a return or is returned to partners. 6.9. Loans. Any sums in excess of the total capital contributions required by this Agreement, required to meet the costs of owning and operating the Partnership Property may be loaned to the Partnership by the Partners, either General or Limited, and may be repaid with interest not to exceed the legal maximum when the Partnership has funds available not required in the operation of the Partnership business. Any such loans shall not increase the lending Partner's interest in the Partnership. 7, Profits, Losses and Distributions. 7.1. Definitions. For purposes of this Agreement, the following capitalized terms are defined as follows: 7.1.1. "Distributable Cash" is all cash of the Partnership (including without limitation cash from the sale of any or all of the Partnership property) less (i) the amount necessary for payment of all costs, expenses, obligations and liabilities of the Partnership then due (including any then due advances to the Partnership by the Partners), and (h) the amount deemed necessary by the Administrative General Partner, in the exercise of its reasonable discretion, to establish a reserve for the payment of foreseen or unforeseen costs, expenses, obligations or liabilities of the Partnership. Initial LP Agreement - Santa Ma 9.1159.1,15 3 80A-223 The Partnership shall not make, or receive and retain, any distribution of assets or any income of any kind of the project except surplus cash, and except on the following conditions: (1) All distributions shall be made only as of and after the end of a semiannual or annual fiscal period; (2) No distribution shall be made from borrowed funds, prior to the completion of the project or when there is any default under this Agreement or under the note or mortgage; (3) Any distribution of any funds of the project, which the party receiving such funds is not entitled to retain hereunder, shall be held in trust separate and apart from any other funds; and (4) There shall have been compliance with all outstanding notices of requirements for proper maintenance of the project. 7.1.2. "Income", "gains", "losses", "deductions", and "credits" are the Partnership's income, gains, losses, deductions and credits, respectively, as finally determined for federal income tax purposes; provided, however, that in making the allocations of such items for purposes of capital account adjustments, the adjustments required by Treasury Regulations Section 1304-1(b)(2)(iv)(g) shall be taken into account. 7.1.3. The "Accounting Period" of the Partnership will be each period commencing on the first day following the last day of the immediately preceding Accounting Period (which for the Partnership's first fiscal year shall be deemed to be the date of the commencement of the Partnership) and ending on December 31 (which shall also be the Partnership's fiscal year end). 7.1.4 "Minimum Gain" shall mean the taxable gain (whether taxable as capital gain or as ordinary income), which would be recognized by the Partnership if the nonrecourse debt of the Partnership were foreclosed upon and the Partnership's property securing such debt were transferred to the creditor in satisfaction thereof, but only to the extent of the excess of (a) the outstanding principal balance of such nonrecourse debt plus any accrued but unpaid interest thereon (whether or not added to principal) to the extent permitted by law, over (b) the adjusted basis of such property. 7.1.5. "Invested Capital" shall be the amount of capital contributed or deemed contributed to the Partnership by the Limited Partners pursuant to Paragraph 6,1 (entitled "Initial Capital). l"it1a1 LP Agr*.ment - Banta Ma 9.1, 159, 1. 15 4 80A-224 7.1.6. "Invested Capital Balance" shall be the amount of a Partner's Invested Capital, plus the amount of any additional capital contributed by such Partner and reduced by the amount of cash distributed to such Partner pursuant to any provision of Paragraph 7,10 (entitled "Distributions of Cash from Operations"), Paragraph 7.11 (entitled Distribution of Cash from Capital Event) and subparagraph 11.3.3. 7.2. Allocation of Losses. For all Accounting Periods on a cumulative basis, except as otherwise specifically provided in this Agreement (including without limitation the provisions of Paragraphs 7.5 [entitled "Minimum Gain"], 7.6 [entitled "Recourse Debt Loss Allocation"]), 7.8 [entitled "Qualified Income Offset"], 7.12 [entitled "Allocations for Contributed Property; IRC Section 754 Adjustments"] and 7.15 [entitled "Revaluation Adjustment"]) (collectively such Paragraphs 7,5, 7,6, 7.8, 7.12 and 7.15 allocations shall be referred to as the "Required Allocations"), all losses (including all expense items separately stated on the Partnership's tax return) of the Partnership shall be allocated to the Partners in proportion to their then Partnership's Interests as set forth on Exhibit "A". 7.3. Allocation of Profits. For each Accounting Period, except as otherwise specifically provided in this Agreement (including without limitation the provisions of Paragraphs 7.5 [entitled "Minimum Gain"], 7.7 [entitled "Allocation of Ordinary Income"], 7.8 [entitled "Qualified Income Offset"], 7.12 [entitled "Allocations for Contributed Property; IRC Section 754 Adjustments"] and 7,15 [entitled "Revaluation Adjustment"]), all profits and gains (collectively "profits") (including all income items separately stated on the Partnership's tax return) of the Partnership shall be allocated to the Partners as follows: 7.3.1. First, if profits arise from the sale or other disposition of property with respect to which an investment tax credit was previously claimed, profits equal to the amount by which the basis of such property was reduced as a result of such claimed investment tax credit shall be allocated among the Partners in the same manner as such investment tax credit was previously allocated; 7.3.2. Second, to the same Partners, in the same amounts and in the same order of allocation as losses were theretofore allocated pursuant to Paragraph 7.2 (entitled "Allocation of Losses") and the Required Allocations, less the amount, if any, of profits previously allocated under this subparagraph 7.3.2 and/or the Required Allocations; and 73.3, Thereafter, to the Partners in proportion to their then Partnership Interests as set forth on Exhibit "A". 73.4. Notwithstanding anything to the contrary contained in this Agreement and except as provided in subparagraph 7.5.2 and 7,8.1, in the event any profits from the sale or other disposition of all or any portion of the Partnership's assets constitute interest income (including "imputed interest"), such interest income, for each year, shall be allocated among the Partners pro rats based upon the amount of deferred principal proceeds (exclusive of "imputed interest") received by each of the Partners pursuant to Paragraph 7.10 (entitled "Distributions of xnitial ov Agteement - sam:a nna 9. 1.1s9.t.15 5 80A-225 Cash from Operations"), Paragraph 7.11 (entitled Distribution of Cash from Capital Events) and subparagraph 11.3.3. during each such year. 7A. Allocation of Credits. All income tax credits of the Partnership shall be allocated in accordance with the ratio in which the profits of the Partnership are allocated (or would be allocated) among the Partners pursuant to Paragraph 7.3 (entitled "Allocation of Profits"), for the Partnership's taxable year during which the property which gives rise to the income tax credit is placed in service, regardless of whether the Partnership has a profit or a loss for such taxable year, However, if the ratio in which the Partners divide the profits of the Partnership changes during the taxable year of the Partnership in which such property is placed in service, the ratio effective for the date on which the property is placed in service shall apply. To the extent that any income tax credits allocated to the Partners are subject to recapture, such recapture income shall be allocated to the Partners to whom such tax credits were previously allocated. 7.5. Minimum Gain. Notwithstanding any other provision of this Agreement to the contrary and with a priority allocation pursuant to "treasury Regulations Section 1.704-1 [b] [4][iv] [e]: 7.5.1. The Limited Partners shall not be allocated loss or deduction (or items thereof) attributable to nonrecourse debt which is secured by Partnership Property if such allocation would cause the sum of the deficit capital account balances of the Partner receiving such allocation (increased by the additional capital contributions such Partner is obligated to make pursuant to Paragraph 6.1 [entitled "Initial Capital"]) to exceed the Minimum Gain (determined at the end of the Partnership's taxable year to which such allocation relates) a Limited Partner's allocable share of the minimum gain shall be equal to the product of (a) the Minimum Gain, times (b) such Partner's then Partnership Interest. 7.5.2. The Partners with deficit Capital Account balances resulting in whole or in part from allocations of loss or deduction (or item thereof) attributable to nonrecourse debt which is secured by Partnership property shall, to the extent possible, be allocated income or gain (or item thereof) until the sum of such deficit Capital Account balances equals the Minimum Gain. 7.53. For purposes of computing the sum of the Partners' deficit Capital Account balances, if any property (including cash) is held by the Partnership at the end of the Partnership taxable year and there is a reasonable expectation that such property will be distributed to a Partner (other than in liquidation of the Partnership) prior to a corresponding increase in such Partner's Capital Account, such property shall be treated as having been distributed to such Partner on the last day of such taxable year, 7.5.4. The Minimum Gain shall be reduced by the cost of any capital improvements to be made to the subject property and the amount of any principal payments to be made with respect to the non recourse debts secured by such property to the extent there is a Initial 6P Aveement - Santa MA 9, 1. 159. 1. 15 80A-226 reasonable expectation that such improvements or payments would reduce the Minimum Gain below the sum of the deficit Capital Account balances. 7.6. Recourse Debt Loss Allocation. The allocation of loss or deduction (or items thereof) not attributable to nonrecourse debt which is secured by Partnership property shall not be made to a Partner if such Partner has a deficit Capital Account balance. Any such loss shall be allocated first among the Partners with positive Capital Account balances (and among them in proportion to their then positive Capital Account Balances) and then to the Administrative General Partner (and among them in proportion to their then respective Partnership Interests). Furthermore, losses attributable to nonrecourse liabilities of the Partnership where a Partner has economic risk of loss shall be allocated as required pursuant to Treasury Regulations Section 1.704- 1 (b)(4) (iv)(g). 7.7. Allocation of Ordinary Income. Notwithstanding anything to the contrary contained herein, any gain which is taxable as ordinary income as a result of depreciation or cost recovery taken by the Partnership shall be allocated among the Partners in the proportion that depreciation or cost recovery deductions were previously allocated among the Partners. 7.8. Qualified Income Offset. Notwithstanding anything to the contrary contained herein, allocations of profits, gain and losses to the Partners shall be made in a manner to comply with the provisions of Treasury Regulations Section 1,704-1(b)(2)(ii)(d). It is the Partners' intent that the following provisions, to the extent permitted by Treasury Regulations Section 1.704-1(b)(2)(ii)(d), shall not affect (a) losses or deductions (or items thereof) attributable to nonrecourse debt which is secured by Partnership property and/or (b) the priority allocation, if any, pursuant to subparagraph 7.5.2. In furtherance thereof, the following provisions shall apply to the extent required pursuant to the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d). 7.8,1. Losses shall not be allocated to any Partner if such allocation would, together with any decrease (and increase) of such Partner's Capital Account pursuant to the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6), cause or increase a deficit balance (in excess of any limited dollar amount of such deficit that such Partner is obligated to restore which shall include the amount of any Partner's share of minimum gain as provided by the provisions of Treasury Regulations Section 1.704-1[b][4][iv][fj) in such Partner's Capital Account as of the end of the Partnership's taxable year to which such allocation relates, A Partner's Capital Account adjusted as provided by this subparagraph 7.8.1 (including any obligation to restore any deficit) shall be referred to as the "Adjusted Capital Account'. 7,82. Any losses not allocable to a Partner pursuant to the foregoing subparagraph shall be allocated to such Partners who have positive Adjusted Capital Accounts in proportion to their respective positive Adjusted Capital Accounts, with any losses in excess of such positive Adjusted Capital Accounts, being allocated to the Administrative General Partner (and among them in proportion to their then respective Partnership Interests, 7.8.3. If a Partner unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and/or (6), Snil;lax 1'e pyreemnnl - Nan Cd Ana 9.1.159,1.15 80A-227 then such Partner will be allocated items of income and gain in an amount and manner sufficient to eliminate any deficit balance in such Partner's Adjusted Capital Account as quickly as possible. 7.9. IRC Section 704 Modifications. If the General Partner receives the written opinion of tax counsel to the Partnership that the allocations of income, gain, loss, deduction or credit (or items thereof) would not fully conform to IRC Section 704(b), the Administrative General Partner is directed to make such allocations and/or amendment to this Agreement as advised by such tax counsel but only so long as none of the Partners would be materially adversely affected thereby, A Partner shall be deemed to be "materially adversely affected thereby" only if the effect of such allocation or amendment would be to cause such Partner to receive Distributable Cash in a manner inconsistent with the Partners' intentions as evidenced by this Agreement. It is the further intent of the Partners that the Administrative General Partner shall cause, to the extent permitted pursuant to the provisions of Treasury Regulations Section 1.704-1(b), items of income, gain, loss and deductions not required to be allocated in accordance with the Required Allocations to be allocated among the Partners to minimize the differences between the allocations provided by Paragraphs 7.2 (entitled "Allocation of Losses") and 7.3 (entitled "Allocation of Profits") and the allocations pursuant to the Required Allocations. Any allocation made pursuant to this Paragraph shall supersede any allocation otherwise provided in this Agreement and no approval of any Partner shall be required. The Partners agree to promptly execute any amendment to this Agreement pursuant to the provisions of this Paragraph and upon failure to do so, the Administrative General Partner, as the Limited Partners' attorney -in -fact, is authorized to execute any such amendment on behalf of the Limited Partners. 7,10. Distribution of Cash from Sales/Refinance. Except as required under paragraph 7.10.9 and pursuant to subparagraph 11,33, for each Accounting Period, Distributable Cash shall be distributed to the Partners as follows: 7.103, First, to payment of interest on partner's loans (if any); 7.10.2, Second, to payment of the principal of partner's loans (if any); 7,103. Third, to the return of "New Money" contributed pursuant to paragraph 6.8 (if any); 7.104. Next to payment of a 30% return on the New Money calculated from the date contributed until the date returned; 7,10.5. Next, to the Original Partners (and among them in proportion to their then respective Invested Capital Balances) until each Partner has received an amount of cash equal to the amount of his then Invested Capital Balance; 7,10.6. Next, to the Limited Partners until the Limited Partners have received an overall annualized return of 18% (including previous distributions from operations); Initial 4P Agreement - Santa Ma 9.1.159.1.15 80A-228 710.7 Next, to the Administrative General Partner until the Administrative General Partner receives a distribution of 10% of the sum of 7.10.6 and 7.103. 7.10.8 Thereafter, to the Limited and Administrative General Partner simultaneously in the ratio of 90/10 respectively. 7.10,9. Notwithstanding anything to the contrary contained in this Agreement, if any Distributable Cash constitutes interest income received in connection with the sale or other disposition of all or any portion of the Partnership's assets (including "imputed interest"), cash equal to such interest received by the Partnership shall be distributed, during each year, among the Partners in the same ratio as the principal amount of such installment sale is distributed to the Partners during such year and such distribution shall not be treated as a distribution of Distributable Cash pursuant to subparagraphs 7.103 and 7.10,4; 7.10.10, Distribution of Cash from Operations. All periodic Distributions from Operations will be made in accordance with the partners interests in the partnership per Exhibit A, Column 1 until the Limited Partners have received a 9% cash on cash return. The Partnership is authorized to execute a Note and Mortgage in order to secure a loan to be insured by the Secretary of Housing and Urban Development and to execute a Regulatory Agreement and other documents required by the Secretary in connection with such loan. Any incoming general partner shall, as a condition of receiving an interest in the Partnership, agree to be bound by the Note, Mortgage, and Regulatory Agreement and other documents required in connection with the PHA insured loan to the same extent and on the same terms as the other general partners. Upon any dissolution, no title or right to possession and control of the Project., and no right to collect the rents therefrom, shall pass to any person who is not bound by the Regulatory Agreement in a manner satisfactory to the Secretary. 7.10.11 Next, the Administrative General Partner will receive a distribution of 10% of the sum of 7.10.10 and 7.10.11. 7.10,121'hereafter, in the ratio of Exhibit A, Column 2. 7,11. Allocations for Contributed Property; IRC Section 754 Adjustments. If any Partner contributes any property to the Partnership, gain or loss with respect to such property on the sale or other taxable disposition of such property and the depreciation or cost recovery deductions for such property shall be allocated to the Partners as required in IRC Section 704 (c). To the extent required pursuant to Treasury Regulations Section 1.704-1 (b) (2) (iv) (m), the Partnership gain or loss, with respect to a Partner for whom the provisions of IRC Section 734 (b) or Section 743 (b) are applicable, shall be allocated in accordance with such provisions. Initial LP AgYeement - Santa And 9.1.159.1.15 9 80A-229 7.12. Identity of Distributees. Distributions shall be made only to persons who, according to the books and records of the Partnership, are the owners of record of partnership interest on a date to be determined by the Administrative General Partner. Neither the General Partners nor the Partnership shall incur any liability for making distributions in accordance with the preceding sentence, whether or not the General Partners has knowledge or notice of any transfer of ownership of any partnership interests. 7.13. Sharing Between Transferor and Transferee. If an interest in the Partnership is transferred, the income, gains, losses and deductions allocable to the interest transferred for the Accounting Period during which the transfer occurred will be allocated between the transferor and transferee of the interest in proportion to the time during the Accounting Period that the interest was owned by the transferor and transferee. Credits shall be allocated to the party who owned the interest at the time that the property giving rise to the credit was placed in service. Each transferee will be credited with the capital account of the transferee's transferor. If a transferor transfers less than all of the transferor's interest in the Partnership, the capital account will be allocated in proportion to the fraction of the interest respectively transferred and retained. 7.14. Revaluation Adjustment, 7.14.1. The Administrative General Partner, upon advice of the Partnership's tax counsel that the Partnership is authorized pursuant to the provisions of Treasury Regulations Section 1.704-1(b) (2)(iv)(f) and that it is in the Partners' interest to do so, shall cause an increase or decrease in the Partners' Capital Accounts to reflect a revaluation of Partnership properly (including intangible assets such as goodwill) on the Partnership books. Any such revaluation shall be made strictly in compliance with the provisions of Treasury Regulations Section 1.704-1(b)(2) (iv)(f), including without limitation; (a) such adjustments shall (i) be based on the fair market value of Partnership property (as agreed to by the Partners (as hereinafter provided) and taking IRC Section 7701 [g] into account) on the date of adjustment and (ii) reflect the manner in which the unrealized income, gain, loss or deduction inherent in such property (that has not been previously reflected in the Capital Accounts) would be allocated among the Partners if there were a taxable disposition of such property for its fair market value at the date of adjustment; (b) the Capital Accounts shall be adjusted in accordance with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization gain or loss (all as computed for book purposes) with respect to such property following the date of adjustment; and (c) the Partners' shares of depreciation, depletion, amortization, gain or loss (all as computed for tax purposes), with respect to such property, shall be determined so as to take account of the variation between the adjusted tax basis and book value of such property in the same manner as under IRC Section 704(c) following the date of adjustment. 7.14.2. In accordance with the provisions of Treasury Regulations Section 1,704-1(b)(2)(iv)(g), the amount of book depreciation, depletion or amortization, for a period, with respect to any Partnership Property, is the amount that bears the same relationship to the book value Initial cP AgtOOMGnt - SeM[ Ana 9, 1. 159. 1. 15 10 80A-230 of such property as the depreciation (or cost recovery deduction), depletion or amortization computed for tax purposes for such property, for such period, bears to the adjusted tax basis of such property. 7.14.3. Por purposes of the foregoing, except as herein- after provided, the fair market value of any such Partnership Property shall be equal to the amount determined by the General Partner as set forth in a written notice delivered by the Administrative General Partner to the Limited Partners (the 'Notice"). Notwithstanding the foregoing, if those Limited Partners ("Dissenting Limited Partners") owning a majority of the Partnership Interests owned by all the Limited Partners object in writing to such fair market value within 10 days of delivery of the Notice, then the fair market value of such property shall be determined by the mutual agreement of the Dissenting limited Partners and the Administrative General Partner. If they cannot so agree, then the fair market value shall be determined by a qualified appraiser selected by the mutual agreement of the Administrative General Partner and the dissenting Limited Partners (and if they are unable to agree on such selection, the appraiser shall be selected by the American Arbitration Association or any successor organization thereto). All appraisal costs shall be paid by the Partnership. 8. Management. 8.1. Authority of General Partners. The Administrative General Partner and the Managing General Partner, if so named at this time, shall each have complete power of management of the Partnership and shall have authority to act on behalf of the Partnership in all Partnership matters including without limitation the power to execute notes, deeds of trust, contracts and leases; to assume direction of business operations and the Administrative General Partner and the Managing General Partner, if so named at this time, shall each have all rights, powers and authority generally conferred by law or necessary, advisable or consistent with accomplishing the purpose of the Partnership as set forth in Article 4 of this Agreement. During the operation phase the Managing General Partner shall be primarily responsible for the Partnership's operations. The Managing General Partner when entered into the Agreement shall perform other tasks and duties as may be required for non-profit general partners in order to maintain property tax abatement under the welfare exemption of the California Revenue and Tax Code and will perform all duties to qualify as a Managing General Partner under rule 140.1 adopted by the Board of Equalization each year. 82 Restrictions. The Administrative General Partner shall have no authority to (a) do any act which would make it impossible to carry on the ordinary business of the Partnership; (b) do any act in contravention of this Agreement; (c) possess Partnership Property or assign the right of the Partnership in any Partnership Property for other than a Partnership purpose; (d) obligate the Partnership as a surety or guarantor, endorser, or accommodation endorser for any other person or firm; or (e) make an assignment of the Partnership assets for the benefit of creditors. Initial N. Agreement. - Santa Ma 9. 1.159.l.l5 11 80A-231 8.3, Approval I7ights, The Limited Partners shall have the right, by vote of more than 50% of the Limited Partners' Interests, as shown on Exhibit "A", to approve the following matters affecting the basic structure of the Partnership: 8.3.1. The dissolution and winding up of the limited partnership. 8.3.2. The merger of the limited partnership or sale, exchange, lease, mortgage, pledge, or other transfer of, all or a substantial part of the assets of the limited partnership other than in the ordinary course of its business. 8.3.3. Incur indebtedness by the limited partnership other than in the ordinary course of business. 8.3.4, A change in the nature of the business. 8.3.5. Transactions in which the General Partners has an actual or potential conflict of interest with the limited partners or the partnership. 8.3.6. The removal of a general partner. 8.3.7. An election to continue the business of the Limited Partnership other than under the circumstances described in subparagraph 8.3.9 or 8.3.10. 8.3,8. The admission of a general partner other than under the circumstances described in subparagraph 8.3.9 or 83.10, subject to the unanimous vote requirement of paragraph 11.6. 8.3.9. The admission of a general partner or an election to continue the business of the limited partnership after a general partner ceases to be a general partner other than pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act where there is no remaining or surviving general partner, subject to the unanimous vote requirement of paragraph 11.6 83.10.The admission of a general partner or an election to continue the business of the limited partnership after the general partner ceases to be a General Partner pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act where there is no remaining or surviving general partner, subject to the unanimous vote requirement of paragraph 11.6 All other matters are within the discretion of the Administrative General Partner and the Limited Partners shall have no right to vote on those matters. 8.4. Meetings of Partners. Meetings of Partners shall be held at the principal place of business of the Partnership. Meetings shall be held only when called by either the Administrative General Partner or by Limited Partners representing more than 10% of the Limited anitinl LP Agreement - Gana Ana 9.1.159.1.15 12 80A-232 Partners' Interests, as shown on Exhibit A, Meeting notices and procedures shall be in conformity with California Corporations Code Section 15637. 8.5 Power of Attorney, The Limited Partners hereby irrevocably constitute and appoint the Administrative General Partner as his attorney to make, execute, acknowledge, and record any instrument which may be required by law to be filed by the Partnership, and any and all deeds, leases, deeds of trust, loan applications, promissory notes, loan agreements, assignments of lease, or other instruments or documents which the Administrative General Partner deems appropriate or necessary to carry out the purposes of this Agreement. The foregoing power of attorney shall survive the delivery of any assignment by a Limited Partner of the whole or any portion of his limited partner's interest, and any assignee of a Limited Partner hereby constitutes and appoints the Administrative General Partner as his attorney in the same manager and with the same force as if such assignee had executed this Agreement. 8.6. Other Activities. The Administrative General Partner shall devote so much of its time and attention to the Partnership business as it deems necessary or advisable under the circumstances. Any partner, General or Limited, may engage in or possess an interest in other partnerships and other business ventures of every nature and description and neither the Partnership nor the Partners shall have any right in such independent ventures or to the income or profits derived therefrom. Neither the General Partners or any Limited Partner shall be obligated to present any particular investment opportunity to the Partnership, even if the opportunity is of a character which, if presented to the Partnership, could be taken by the Partnership and the Partner receiving the opportunity shall have the right to take it for his or her own account or to recommend it to others, The fact that a Partner is employed, or is directly or indirectly interested in or connected with any firm or corporation employed by the Partnership to perform a service, shall not prohibit the General Partners from employing such person, farm or corporation, or from otherwise dealing with him or it. Neither the Partnership nor the Partners shall have any rights in or to any income or profits derived from such employment, nor shall such employment change the status of the partner as a Limited Partner hereunder. 8.7. Scope of Authority. Except as herein set forth, the Administrative General Partner shall have the right to cause the Partnership to enter into transactions with other persons, firms or entities with which the Administrative General Partner is affiliated, and to receive compensation, directly or indirectly through such affiliated corporation or other persons, for services rendered in connection with the Partnership from any source or transaction. 8.8. Limitation on Liability. The Partners acknowledge and agree that it is their intent that the General Partners shall not be liable, responsible or accountable in damages or otherwise, to any third person nor to the Partnership, nor to the other Partners for any loss, liability, obligations, penalties, actions, judgments, proceedings, damages, costs or expenses of any kind or nature whatsoever, including without limitation, all costs and expenses of defense, appeal and settlement, in any way relating to or arising out of or alleged to relate or arise out of any action or inaction on the part of the Partnership or the General Partners, except for the willful misconduct, gross negligence or reckless disregard by the General Partners of its duties. The Partnership shall Sn itial LP Agreement - Santa Ana 9,1..159.1.15 13 80A-233 indemnify the General Partners and hold it harmless from any of the foregoing, The General Partners is hereby authorized to withhold distributions if they determine in their sole discretion that such funds should be held as a reserve for indemnification, 8.9. Reimbursement of Expenses. 'The Administrative General Partner shall be entitled to reimbursement for all legal and auditing fees and expenses of agents and advisors, costs of insurance, and the cost of preparing the Partnership's tax returns. The Administrative General Partner shall also be entitled to reimbursement from the Partnership for direct and specific project expenses, overhead and administration costs, which shall include expenses connected with the distribution to and communication with Partners. The Administrative General Partner shall be entitled to a fee equal to 5% of the gross annual revenues as an asset/property management fee. In addition an affiliated company of the Administrative General Partner will act as a real estate broker and will receive a commission not to exceed 1% of the price on the purchase and on the sale of the property, No Limited Partner shall be entitled to any share of any such sums paid to the Administrative General Partner or its affiliate. 8.10. Administrative and Development Fees. The General Partners shall not be entitled to any compensation for time, labor or overhead, except as specifically provided for in this Agreement. Transferability of Partners' Interest. 9.1, Permitted Transfers. The interest of a Partner may be sold or transferred only: (a) to an entity in which the transferring Partner owns a 5 1 % or greater interest; (b) to the Partnership or to any Partner; (c) by testamentary disposition or by gift to a Partner's spouse or issue or to a trust fur such spouse or issue; (d) upon the sale of a Limited Partnership interest to a non partner, subject to the provisions of Paragraph 9.2, 9.2, Sale of Limited Partnership Interest. Except as set forth in Section 9.1.1, 9,2.2 or 9.23, the interest of a Partner in the Partnership only in its entirety, and on the following conditions. Any attempted transfer to any other person, including a transfer by operation of law, shall be void. 9.2.1, If any Partner ("Selling Partner") receives a bona fide offer to purchase all or any part of his Partnership interest, which offer the Selling Partner wishes to accept, the Selling Partner shall immediately notify the other Partners ("Remaining Partners") of the offer. The offer shall be communicated as provided in Paragraph 13 and shall include, the terms and conditions of the offer, the name of the person making the offer, the date on which the offer expires, and all other relevant information concerning the offer, Each Remaining Partner shall have 20 days after receipt of the offer, to match the price in the offer by giving notice in writing to the Administrative General Partner specifying how much of the Selling Partner's interest he wishes to purchase. Initial LP Agreement - San Ca Ana 3.1. L59.1, 15 12 80A-234 9.2.2. If the total of the offers of the Remaining Partners offering to purchase ("Accepting Partners") equals or exceeds the interest the Selling Partner offered to sell, the Accepting Partners shall become bound to purchase, and Selling Partner shall become bound to sell his interest to the Accepting Partners on the terms of the offer. The portion of the price payable by each of the Accepting Partners shall be the several, and not joint, obligation of each of the Accepting Partners, and shall be paid to the Selling Partner. If the total of the offers of the Accepting Partners equals the interest the Selling Partner offered to sell, each Accepting Partner shall purchase the proportion of the Selling Partner's interest specified in his notice. if the aggregate of the offers of the Accepting Partners exceeds the interest the Selling Partner offered to sell, each Accepting Partner shall purchase that proportion of the offered interest equal to such Accepting Partner's interest in the Partnership. No later than 7 days after expiration of the period for the Remaining Partners to exercise their rights under this article, the Administrative General Partner shall advise the Partners of the amount payable by each Accepting Partner, and the Administrative General Partner shall cause the interest of the Selling Partner to be eliminated and the interest of each of the Accepting Partners to be increased by the respective portion of the Selling Partner's interest purchased. 9.2.3. If the Remaining Partners do not offer to purchase all of the offered interest of Selling Partner within 20 days after receipt of the Proposed Offer, the Selling Partner may disregard all offers received from the Remaining Partners and may, within 30 days after the 20-day period, dispose of his interest on the terms of the offer, provided that such sale shall not be at a lower price or upon terms more favorable to the buyer than those specified in the offer, If the Selling Partner can not sell his interest within said 30 day period, he may then only sell his interest after re -offering it to the other Partners as set forth above. 9.3. Substituted Limited Partner, No Limited Partner shall have the right to substitute an assignee for his capital contribution, and no transferee pursuant to paragraphs 9.1 and 9.2 of the whole or any portion of the Limited Partner's interest in the Partnership shall become a substituted Limited Partner unless: (a) such assignee delivers to the Administrative General Partner an agreement in writing to assume all of the obligations of Selling Partner under this Agreement; and (b) the Administrative General Partner consents in writing to such substitution; the Administrative General Partner may grant or withhold its consent in its sole and absolute discretion. 9.4, Election of General Partner. The Administrative General Partner may elect to treat and assignee who has not become a substituted limited partner as a substituted limited partner in the place of his assignor should the Administrative General Partner deem, in its sole discretion, that such treatment is in the best interests of the Partnership. 9.5, Non -Termination. The Partnership shall not be terminated by the death, insanity, bankruptcy, insolvency, dissolution, withdrawal, or expulsion of any Limited Partner, nor Initial Le ngreemeat - Santa "a 9.1159. 1. 15 is 80A-235 by the assignment by any Limited Partner of his interest or by the admission of new Limited Partners. 9.6. Death or Incompetency of Limited Partner. Upon the death or legal incompetency of a Limited Partner his personal representative shall have all the rights of a limited partner for the purpose of settling or managing his estate. 9.7. Other Limited Partners. Upon the bankruptcy, insolvency, dissolution or other cessation of a corporate limited partner, the authorized representative of such entity shall have the rights of a limited partner to effect the orderly disposition of said Limited Partner's interest. 10. Financial Information. 10.1. Books of Account. The Administrative General Partner shall keep accurate books of account in which all matters relating to the Partnership, including all income, expenses, assets, and liabilities shall be entered. Said books shall be kept on a cash basis and shall be opened to examination by any partner at any time. 10.2. Accounting. A financial statement describing the condition of the partnership, as of the close of business on the last day of the calendar year and such additional information as may be needed by the partners to file their tax returns, shall be rendered to each partner within 90 days thereafter. Except for substantial errors brought to the attention of the Administrative General Partner within 30 days of its rendition, such accounting shall be final and conclusive as to all partners. 10.3. Tax Matters Partner, AMCAL Multi -Housing Two, LLC, shall be the "Tax Matters Partner" pursuant to IRC Section 6231 (a) (7). The Tax Matters Partner shall keep the other partners apprised of all proceedings regarding Partnership tax items. The Tax Matters Partner shall not enter into a settlement agreement with the Internal Revenue Service on behalf of any partner without that partner's consent. 10.4. Accounting Decisions. All decisions as to accounting matters, except as specifically provided to the contrary in this Agreement, will be made by the Partnership's accountants subject to the approval of the Administrative General Partner. 10.5. Federal Income Tax Elections. The Administrative General Partner shall cause the Partnership to make an election (or consent) to any such election by a Partner) pursuant to any of IRC Sections 732(d) and/or 754 (or corresponding provisions of succeeding law or state law), as may be determined by the Administrative General Partner in the Administrative General Partner's reasonable discretion, except to the extent otherwise determined by this Agreement. 11. Dissolution. InAial LP Agreement - San Ca Ma 9.1,159. 1. 1G 16 80A-236 I I.1, Mutual Agreement. The Partnership shall be dissolved upon: (a) the vote of the Limited Partners as provided in paragraph 8.3, or (b) upon sale of the Partnership Property; provided, however, if the Partnership receives a promissory note as part of the consideration for the Partnership Property, the Partnership shall continue for the sole purpose of collecting and enforcing such obligation. The Partnership shall engage in no further business thereafter other than that which is necessary to wind up the business and distribute the assets. 11,2. Proceedings Upon Dissolution. Upon the dissolution of the Partnership, the Administrative General Partner shall notify partners of such dissolution, wind up the affairs of the Partnership, liquidate the assets of the Partnership, pay or provide for the payment of all the debts, and divide the surplus, if any, among the partners according to the provisions of paragraph 11.3 hereof, subject to such adjustment as may be required by the Partnership's accountant in accordance with generally accepted accounting principles. If after the liquidation and distribution, any Partner or Partners would have a negative Capital Account, net income, if any, resulting from the liquidation shall first be allocated to that Partner or those Partners on a pro rata basis in the amount of the deficit and the remaining net income to the Partners in proportion to their receipt, or entitlement to receipt of the proceeds of liquidation. If after that allocation a Partner has a negative Capital Account, that Partner shall contribute to the Partnership cash in the amount of the remaining deficit. 11.3. Distributions on Dissolution. The assets of the Partnership shall be applied in the following order of priority: 11.3.1. To the payment of debts and liabilities of the Partnership (other than any loans and advances that may have been made by any of the Partners, or amounts owing to any of the Partners) and the expenses of liquidation; 113.2. To the setting up of any reserves that the Administrative General Partner may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership, and, at the expiration of such period as the Administrative General Partner shall deem advisable, to distribute the balance thereafter remaining in die manner hereinafter provided; 113.3. Any balance then remaining will be distributed to the Partners in accordance with their respective Capital Accounts, provided that profits shall first be allocated in accordance with the provisions of Paragraph 7.3 (entitled "Allocation of Profits"), in the manner as if all the Distributable Cash were then distributed in accordance with the provisions of Paragraph 7.11 (entitled "Distributions of Cash from Capital Event"). 11.4. Assets Other Than Cash. Assets of the Partnership may be distributed in kind on the basis of the then fair market value of such assets as determined by agreement of the Partners, and if no such agreement of value is reached within 10 days, then such value shall be determined by an independent appraiser appointed by the American Arbitration Association upon application of the Administrative General Partner (the cost and expense of said appraisal to be borne by the Partnership). If agreed to by all the Partners, distributions in -kind will be made to the Initi.1 LI' A9[�OIIIOIt� - 9n11Ln I1nU 9.1 .159.1.1.5 80A-237 Partners as tenants -in -common. For purposes of malting such distribution only, the unrealized profit or loss on any such asset (based on its fair market value) shall be first allocated among the Partners and the distribution of the asset shall be treated as a distribution of cash equal to the fair market value of such asset. 11.5. Liquidation of Partner's Interest. Upon liquidation of any Partner's interest in the Partnership, the liquidation distributions shall be made in accordance with the positive Capital Account balances of the Partners adjusted as otherwise required by the provisions of this Agreement. A liquidation of a Partner's interest shall occur as required pursuant to Treasury Regulations Section 1.704-1 (b)(2)(ii)(g). 11,6. Reconstitution of Partnership. The Limited Partners may, upon the occurrence of any of the events described in paragraphs 8.3.6 or 11.1, reconstitute the business of the Partnership in a new limited partnership on the terms as this Agreement provided that if all of the General Partner cease to be a General Partner other than pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act, and there is no remaining or surviving General Partner, admission of a new General Partner or a decision to continue the Partnership business by reconstituting the Partnership must be approved by the affirmative vote of all of the Limited Partners. Expenses incurred in the reformation, or attempted reformation, of the Partnership shall be deemed expenses of the Partnership. 11.7. Partnership Assets. Each partner shall look solely to the assets of the Partnership for the return of his investment, and if the assets of the Partnership remaining after the discharge of all debts and liabilities of the Partnership are insufficient to return the investment of each Limited Partner, such Limited Partner shall have no recourse against the Administrative General Partners or any other Limited Partner, 12, Books and Records. The Administrative General Partner shall keep at the partnership's office the following Partnership documents; 12.1. A current list of the fall name, and last known business or residence address of each Partner, together with the contribution and share in profits and losses of each partner. 122 A copy of the Certificate of Limited Partnership and all Certificates of Amendment, and executed copies of any powers of attorney pursuant to which any certificate has been executed. 12.3. Copies of the Partnership's federal, state and local income tax or information returns and reports, if any, for the 6 most recent taxable years. 12.4. Copies of the original Agreement and all Amendments to the Agreement. 12.5. Financial statements of the Partnership for the 6 most recent fiscal years. Ini Ci Ai LP A<,Yeement - SMA Ana 9.1.159.1,15 as 80A-238 12.6. The Partnership's books and records for at least the current and past 3 fiscal years. Upon the request of a Limited Partner, the Administrative General Partner shall promptly deliver to the requesting Limited Partner, at the expense of the Partnership, copies of the documents described in items 12.1, 12.2, or 12A above. All other documents may be inspected and copied by a Limited Partner during normal business hours upon reasonable, prior request. Copies of any amendments to this Agreement signed pursuant to the Administrative General Partner' power of attorney shall be promptly delivered to all Partners. 13, Notices. Any notices required to be given under this Agreement shall be in writing and signed by or on behalf of the party giving the notice sent by prepaid certified or registered mail, return receipt requested, to each partner at the address set forth after his signature or such other address as may be designated by notice given as aforesaid. Service of notice shall be deemed to be effective as of the date shown on the receipt issued by the post office for such registered mail, and if such receipt is not returned, 48 hours after deposit in the United States mail. 14. Attorneys' Fees. If any party hereto files an action or proceeding concerning any provision of this Agreement or the rights and duties of any person in relation thereto, the party or parties in whose favor final judgment shall be entered shall be entitled to recover from the other party or parties his court costs and reasonable attorneys' fees. 15. Miscellaneous Provisions. 15.1. Entire Agreement. All of the agreements heretofore and contemporaneously made by the parties are contained in this Agreement and, except as provided in Paragraph 8.3 this Agreement cannot be modified in any respect except in writing executed by parties holding an aggregate majority of the Partnership interests. 15.2. Validity. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application or interpretation of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby and shall remain in full force and effect. 15.3. Waiver of Action for Partition. Each of the parties hereto irrevocably waives his right to maintain any actions for partition with respect to the Partnership Property and other investments of the Partnership. 15.4. Governing Instruments. In the event of any conflict between the provisions of this Agreement and any document executed or filed by the Administrative General Partner pursuant to the power of attorney granted to him this Agreement shall govern. 15.5. Readings. The headings used herein are for convenience only and shall have no effect upon the interpretation of this Agreement. Whenever the context so requires, the Initial LP Agreement - Santa Ma 9.1,159.1.15 19 80A-239 singular number shall include the plural, the plural shall include the singular, the neuter gender shall include the masculine and feminine genders and vice versa, 15.6. Counterparts. This Agreement may be executed in counterparts, each of which so executed shall be deemed an original, and said counterparts together shall constitute one and the same document. 15.7. Binding Effect, This Agreement shall be binding on, and shall inure to the benefit of the heirs, legal representatives, successors, and permitted assigns of each party. 16, Limited Partners Representations. Each Limited Partner by signing below represents and warrants to the Partnership and to the Administrative General Partner that; 16.1. The Limited Partner has received such information about the partnership, as the Limited Partner deemed necessary to evaluate this investment, and a copy of this Limited Partnership Agreement, 16.2. That the Limited Partner is taking all of the Limited Partnership Interest (the "Units") listed after his name on Exhibit "A" for his own account and not as an agent, trustee, custodian or the like for any other person or with a view to or for sale in connection with a distribution thereof. Each Partner understands that the interest being purchased and sold hereunder has not been registered under the Securities Act of 1933, as amended, nor qualified under the California Corporate Securities Law of 1968, as amended, because the contemplated transaction constitutes a private offering within the meaning of Section 4(2) of the Securities Act of 1933 and Regulation D promulgated there under, and is exempt from qualification pursuant to Section 25102 (f) of the California Corporate Securities Law of 1968, as amended. 16.3. That the Limited Partner is taking the Units for investment purposes only and has no present intention to dispose of them to any other person, 16.4. That the Limited Partner has such knowledge and experience in financial and business matters that he is capable of evaluating the risks of the prospective investment. 16.5, That the Limited Partner is a person who is able to bear the economic risk of the investment. 16.6. That the Limited Partner has an adjusted gross income of at least $30,000 in the year he is subscribing and a net worth of at least $60,000; or a net worth of $100,000 or three times the initial cash investment for the Units subscribed, whichever is greater; and 16.7. That the Administrative General Partner has made available to the Limited Partner the opportunity to obtain any additional information, to the extent the Administrative General Partner possesses such information or can acquire without unreasonable effort or expense, necessary to verify the accuracy of any information contained herein; and Ynllial LP Agr.enrcnt - Santa Ana 8.1,159.1.19 20 80A-240 16.8. Each Partner has been fully advised of the facts respecting the formation of the Partnership and has been given the opportunity to consult his attorney with respect to the Partnership. Each Partner hereby agrees that the offer and sale of the interest to it does not involve any public offering of such interest; and 16.9. The Limited Partner understands that there is no public market for the Units and none is expected to develop and he must continue to bear the economic risk of this investment for an indefinite period, Initial i.P Agrenment - Santa Ana 9,1.159, 1.15 21 80A-241 Dated: September 1, 2015 General Partners: AMCAL Multi--Il�tsing'fwo LLC, a California limit lability company BY:—. Percival Limited Partners: For: AMCAL Enterprises, Inc., a California alifornia corporation jun Na President Initial LP Agreement - Santa Ann 9.1.159.1.15 22 80A-242 EXHIBIT "A" AMCAL 1440 SANTA ANA FUND) L.P. CAPITAL CONTRIBUTION AND PARTNERSHIP INTEREST Column 1 Column 2 CAPITAL NAME OF PARTNER CONTRIBUTIONS % OF INTEREST % OF PROFIT AMCAL Multi -Housing Two LLC $ 1.00 1.00 1.00 an Administrative General Partner AMCAL Enterprises, Inc. $ 99.00 99.00 99.00 Limited Partner TOTAL: $ 100.00 100.00 100.00 Ynitlal LP AgrOOMnt - Santa Ana 9A.199.1.15 23 80A-243 EXHIBIT "B" AMCAL 1440 SAN'TA ANA FUND, L.P. LEGAL DESCRTPTIO'N All that certain real property situated in the County of Orange, State of California, described as follows: Parcel 1 The Easterly 112.51 feet of the Westerly 437,51 feet of that portion of land allotted to N.O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the Final Decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B" Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the center lines of First Street and Mc Clay Street, as shown on a Map filed in Book 47 Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860 Page 4 of Official Records; Thence South 00 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89G 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mc Clay Street; Thence North 0° 06' 40" West 398,34 feet to the point of beginning. Excepting therefrom, that portion of the North 71,00 feet as described in the Deed to the City of 1440 Santa Ana, recorded April 15, 1960 in Book 5196, Page 381 of Official Records. Parcel 2 A non-exclusive easement for ingress and egress over the South 25 feet of the Westerly 325 feet of that portion of the land allotted to N,O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: initial LP hVeement - Santa Ana 9. 1. 159. L. 15 24 80A-244 Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06' 48" West 398,34 feet to the point of beginning. Parcel 3: The Westerly 175.00 feet of the Easterly 375.00 feet of that portion of the land allotted to N.O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06' 48" West 398.34 feet to the point of beginning. Excepting therefrom, the South 21 feet of the North 71 feet thereof. Parcel 4: A non-exclusive easement for ingress and egress over the South 25 feet of that portion of the land allotted to N,O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, Initial 69 Agreement - Santa Ana 9,1.119.1.15 25 80A-245 California, described as follows Beginning at the intersection of the centerline of First Street and Mc Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 890 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mc Clay Street; Thence North 00 06' 48" West 398.34 feet to the point of beginning. Excepting therefrom, the Easterly 375.00 feet Assessor's Parcel Number: 011-154-43 Snjpial LP A9YeemMC - 9anLa Ma 9.1.1$9.1.15 26 80A-246